Climate Change Litigation: A Handbook 9781509948741, 9783406743894

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Foreword from the Editors This handbook investigates important legal issues that emerge from the highly topical discourse on climate protection. Experts from all over the world share their knowledge on “Climate Change Litigation”, illuminating different legal perspectives: international law, European law, as well as national public and private law. In addition, the present volume gives an overview of ongoing lawsuits and their relevant legal frameworks in different jurisdictions, including, inter alia, the United States, Canada, Australia, the UK, France, the Netherlands, Italy, Brazil, and Germany. Climate change is one of the greatest societal challenges of our time. Its legal coverage is in the process of establishing itself as an independent branch of environmental and international law and will most likely become one of the major legal markets of the future. Building upon this development, our handbook aims to pave the way for further legal research on climate change and upcoming legal proceedings in order to help protect our climate. Wolfgang Kahl and Marc-Philippe Weller Heidelberg University

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List of Abbreviations 2nd Cir. .............................. 9th Cir. ............................... A/RES ................................. A1P1 ................................... AC ....................................... ACCC ................................. ACHR ................................ AcP ..................................... addtl. supp. ....................... Admin ................................ AG ....................................... AG ....................................... AG ....................................... AJIL .................................... AktG ................................... ALI ...................................... Am. Indian L. Rev. .......... Am. Rev. Int‘l Arb. .......... AMF ................................... Ann. Econ. Finance ......... AO ...................................... APA .................................... Apple .................................. Approx. .............................. Ariz. St. L.J. ....................... Art. ...................................... ASEAN ............................... AtG ..................................... ATS ..................................... AVR .................................... BA ....................................... Bayer ................................... BB ........................................ BBC ..................................... BBVA ................................. BCG .................................... BCL ..................................... BCSC .................................. BeckOGK ........................... BeckOK .............................. BeckOK BGB .................... BeckOK ZPO .................... BeckRS ............................... BEIS .................................... Beschl. ................................ Beyerlin/Marauhn ........... BGB .................................... BGBl. .................................. BGE .................................... BGH .................................... BGH IPRspr ......................

U.S. Court of Appeals for the 2nd Circuit U.S. Court of Appeals for the 9th Circuit Resolutions of the UN General Assembly, indicating the session in which it was adopted and the date of adoption Article 1 of the First Protocol [to the European Convention on Human Rights] Aarhus Convention Aarhus Convention Compliance Committee American Convention on Human Rights Archiv für die civilistische Praxis additional supply Administrative division Advocate-General stock corporation (Aktiengesellschaft) Die Aktiengesellschaft (journal) American Journal of International Law German Stock Corporation Act (Aktiengesetz) American Law Institute American Indian Law Review American Review of International Arbitration French Financial Markets Authority (Autorité des marchés financiers) Annals of Economics and Finance Advisory Opinion Austria Presse Agentur Apple Inc. Approximately Arizona State Law Journal Article Association of South-East Asian Nations Atomgesetz Alien Tort Statute Archiv des Völkerrechts Bachelor of Arts Bayer AG Betriebs-Berater (journal) British Broadcasting Corporation Banco Bilbao Vizcaya Argentaria Boston Consulting Group Bachelor of Civil Law Supreme Court of British Colombia Beck’scher Online-Großkommentar Beck’scher Online-Kommentar Beck’scher Online-Kommentar zum BGB Beck’scher Online-Kommentar ZPO beck-online.RECHTSPRECHUNG [Department for] Business Energy & Industrial Strategy Beschluss Beyerlin/Marauhn, International Environmental Law, Hart/Beck 2011 Bürgerliches Gesetzbuch (German Civil Code) Bundesgesetzblatt Entscheidungen des Schweizerischen Bundesgerichts (jurisprudence of the Swiss Bundesgericht) The German Federal Court of Justice (Bundesgerichtshof) case law of the BGH refering to international private law

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List of Abbreviations BGHZ ................................. BImSchG ........................... BIT ...................................... BKR .................................... BL ........................................ BlackRock .......................... BMO ................................... BMO GAM ....................... BNatSchG .......................... BoE ..................................... BP ........................................ BRJ ...................................... Brussels Ibis Regulation (Reg.) .................................. BT-Drs. .............................. Bugge, Justice .................... Bugge, Law and Economics ......................... BUND ................................ BUND e. V. ....................... BV ....................................... BVerfG ............................... BVerfGE ............................ BVerfGG ............................ BVerwG ............................. C .......................................... C40 ...................................... CA ....................................... CAA .................................... CAA .................................... CalPERS ............................. CalSTRS ............................. Camb. L.J. .......................... Cass. civ. ............................ Cass. crim. ......................... CBA .................................... CBDR ................................. CCA .................................... CCLR .................................. CCS ..................................... CDP .................................... CDU ................................... CE ....................................... CEENRG ........................... CEO .................................... CER ..................................... CERCLA ............................ CETA ................................. CETS .................................. cf .......................................... CFR ..................................... Ch. ......................................

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Decisions in civil cases of the German Federal Court of Justice Bundes-Immissionsschutzgesetz Bilateral Investment Treaty Zeitschrift für Bank- und Kapitalmarktrecht Basic Law BlackRock Inc. Bank of Montreal BMO Global Asset Management Bundesnaturschutzgesetz Bank of England BP plc Bonner Rechtsjournal Regulation on Jurisdiction and the Recognition of Judgments in Civil and Commercial Matters from 2012 Bundestags-Drucksache Bugge, The Polluter Pays Principle: Dilemmas of Justice in National and International Contexts, in: Ebbeson/Okowa (eds), Environmental Law and Justice in Context, Cambridge University Press 2009, p. 411 Bugge, The Principles of “Polluter Pays” in Economics and Law in: van den Berg/Eide (eds), Law and Economics of the Environment, Juridisk 1996, p. 54 Bund für Umwelt und Naturschutz Deutschland (Association for Environment and Nature Conservation Germany) Bund für Umwelt und Naturschutz e. V. besloten vennotschap (limited liability cooperation) Bundesverfassungsgericht (German Federal Constitutional Court) Entscheidungen des Bundesverfassungsgerichts Bundesverfassungsgerichtsgesetz Bundesverwaltungsgericht (Federal Administrative Court) Celsius C40 Cities Climate Leadership Group Court of Appeal (Cour d’appel) Clean Air Act Administrative Court of Appeal (Cour administrative d’appel) California Public Employees’ Retirement System California State Teachers’ Retirement System Cambridge Law Journal Court of Cassation, Civil Chamber (Cour de cassation, chambre civil) Court of cassation, Criminal Chamber (Cour de cassation, chambre criminelle) Commonwealth Bank of Australia Common but Differentiated Responsibilities Climate Change Act 2008 Carbon & Climate Law Review Carbon Capture and Storage Carbon Disclosure Project Christlich Demokratische Union Council of State (Conseil d’Etat) Centre for Energy, Environment & Natural Resources Governance Chief Executive Officer Certified Emissions Reduction US Comprehensive Environmental Response, Compensation dand Liability Act Comprehensive Economic and Trade Agreement Council of Europe Treaty Series see, compare Charter of Fundemental Rights Chapter

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List of Abbreviations Charter ............................... CISDL ................................ Civ ....................................... CJ (as in Preston CJ) ...... cl. ......................................... CLC .................................... CLGI ................................... Climate L. Rep. ................ CLR ..................................... CLS ..................................... CMA ................................... CO2 ..................................... Col. J. Envtl. L. ................. Colo. J. Int. Env. L. & Pol. ...................................... Colum. L. Rev .................. COM .................................. CONAMA ......................... Cons. constit. .................... CoP ..................................... COP 21 .............................. Cornell L. Rev. ................. CORSIA ............................. COVID-19 ........................ CPTPP ............................... Crim ................................... CRISPP .............................. CSP ..................................... CSR ..................................... CSU .................................... Cth ...................................... D. ......................................... DALY ................................. DB ....................................... DC ....................................... DCC .................................... DCGK ................................ de Sadeleer, Principles .... de Sadeleer, Pro Natura ..

Deakin LR ......................... DGIR .................................. Doc ..................................... DÖV ................................... DPhil .................................. DStR ................................... Duke J. Comp. & Int’l L . Dupuy/Viñuales ............... DVBl. .................................. EACOP .............................. e.g. ....................................... e. V. ..................................... EAA ....................................

Charter of Fundamental Rights of the European Union Centre for International Sustainable Development Law Civil division Chief Justice clause Liability Convention Climate Law and Governance Initiative Climate Law Reporter Centre for Legal Resources Columbia law school Conference of the Parties serving as the Meeting of the Parties to the Paris Agreement Carbon Dioxide Columbia Journal of Environmental Law Colorado Journal of International Environmental Law and Policy Columbia Law Review Commission national environment commission Constitutional Council (Conseil constitutionnel) Conference of the Parties United Nations Framework Convention on Climate Change, 21st Conference of the Parties Cornell Law Review Carbon Offsetting and Reduction Scheme for International Aviation Coronavirus disease 2019 Comprehensive and Progressive Agreement for Trans-Pacific Partnership Criminal division Critical Review of International Social and Political Philosophy Concentrated Solar Power Corporate Social Responsibility Christlich-Soziale Union Commonwealth Decree (décret) disability adjusted life years Der Betrieb (journal) District Council Dutch Civil Code German Corporate Governance Code de Sadeleer, Environmental Principles – From Political Slogans to Legal Rules, Oxford University Press 2002 de Sadeleer, The Polluter-Pays Principle in EU Law – Bold Case Law and Poor Harmonisation, in: Backer/Fauchauld/Voigt (eds), Pro Natura, Festskrift til Hans Christian Bugge, Universitetsforlaged 2012, p. 405 Deakin Law Review Deutsche Gesellschaft für Internationales Recht Document Die öffentliche Verwaltung Doctor of Philosophy Das deutsche Steuerecht Duke Journal of Comparative & International Law Dupuy/Viñuales, International Environmental Law, 2nd ed., Cambridge University Press 2018 Deutsches Verwaltungsblatt East African Crude Oil Pipeline Exempli gratia (for example) eingetragener Verein Environmental Appeal Act

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List of Abbreviations EC ....................................... ECBI ................................... ECCHR .............................. ECE ..................................... ECHR ................................. ECJ ...................................... ECLI ................................... ECR ..................................... ECT ..................................... ECtHR ................................ ed./eds. ............................... eec ....................................... EEELR ................................ EGBGB ............................... EGC .................................... EIA ...................................... EL ........................................ ELD ..................................... Env. L. ................................ Env. L. Rep. ....................... EnWG ................................ EnWZ ................................. EOG Resources ................ EPA ..................................... EPA ..................................... Epiney ................................ EPL ..................................... ER ........................................ ESD ..................................... ESG ..................................... esp. ...................................... ESR ..................................... et al. .................................... et seq. ................................. ETS ..................................... EU ....................................... EU ETS .............................. EuGH ................................. EuGHE ............................... EUR .................................... EurUP ................................ EuZPR/EuIPR ................... EWCA ................................ EWHC ............................... ex. ........................................ f., ff. ..................................... F.; F.2d or F.3d ................. F.Supp.; F.Supp. 2d or F. Supp 3d ......................... FAS ..................................... FATMA ............................. FAZ ..................................... FC ........................................ FCA .................................... FCR ..................................... FET ..................................... Fiduciary Duty Report ... file ref. ................................ FIT ......................................

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European Commission European Capacity Building Initiative European Center for Constitutional and Human Rights e. V. UNECE, Economic Commission for Europe European Convention on Human Rights and Fundamental Freedoms European Court of Justice European Case Law Identifier European Court Reports Energy Charter Treaty European Court of Human Rights editor/editors European economic community European Energy and Environmental Law Review Einführungsgesetz zum Bürgerlichen Gesetzbuch (German Introductory Act to the Civil Code) General Court of the European Union Environmental Impact Assessment Ergänzungslieferung Environmental Liability Directive Environmental Law Environmental Law Reporter Energiewirtschaftsgesetz Zeitschrift für das gesamte Recht der Energiewirtschaft EOG Resources, Inc. United States Environmental Protection Agency U.S. Environmental Protection Agency Epiney, Umweltrecht der Europäischen Union, 3rd ed., Nomos 2013 Environmental Policy & Law Energierecht ecologically sustainable development Environmental, Social and Governance especially Effort Sharing Regulation and others et sequens (and the following) Emission Trading System European Union EU Emissions Trading System Gerichtshof der Europäischen Union Entscheidungssammlung des EuGH Euro Zeitschrift für europäisches Umwelt- und Planungsrecht Europäisches Zivilprozess- und Kollisionsrecht England and Wales Court of Appeal England and Wales High Court example following Federal Reporter Federal Supplement Frankfurter Allgemeine Sonntagszeitung foundation of the environment Frankfurter Allgemeine Zeitung Federal Court Federal Court of Appeal Federal Court Report Fair and equitable agreement Fiduciary Duty in the 21st Century – Final Report file reference Feed-in Tariff

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List of Abbreviations Fla. L. Rev. ........................ fn./s ..................................... Fordham Int’l L.J. ............ FS ........................................ FSB ...................................... FT ........................................ GIC ..................................... FTA ..................................... G20 ..................................... G7 ....................................... Ga. St. L. Rev. ................... GAOR ................................ GATT ................................. GBRMP .............................. GBRWHA ......................... GCF .................................... GDP .................................... GEIA .................................. Geo. Int’l Envtl. L. Rev. .. Georgetown L.J. ............... GG ...................................... GHDHA ............................ GHG ................................... GLJ ...................................... Global Risks Report 2020 .................................... GmbH ................................ GOBReg ............................. GOBReg ............................. GPR .................................... GPR .................................... GWP ................................... Harv. Bus. Rev. ................ Harv. Envtl. L. Rev. ......... Harv. L. Rev. ..................... HFC .................................... HGB .................................... HPflG ................................. HR ....................................... HSBC .................................. i.a. ........................................ I.C.J. .................................... I.C.J. Reports .................... i.e. ........................................ IACtHR .............................. IASB ................................... IBAMA .............................. IBDF ................................... Ibid. ..................................... ICAO .................................. ICCPR ................................ ICESCR .............................. ICJ ....................................... ICLQ ................................... ICSID ................................. ICTSD ................................

Florida Law Review footnote/s Fordham International Law Journal Festschrift Financial Stability Board Financial Times Global Investor Coalition on Climate Change Free Trade Agreement Group of Twenty Group of Seven Georgia State Law Review General Assembly Official Records General Agreement on Tariffs and Trade Great Barrier Reef Marine Park Great Barrier Reef World Heritage Area Green Climate Fund Gross Domestic Product Green Energy Investment Agreement Georgetown International Environmental Law Review Georgetown Law Journal Basic Law for the Federal Republic of Germany (Grundgesetz der Bundesrepublik Deutschland) Gerechtshof Den Haag (Court of lower instance in the Nederlands) Greenhouse Gas German Law Journal The Global Risks Report 2020, World Economic Forum in partnership with Marsh & McLennan and Zurich Insurance Group company with limited liablility (Gesellschaft mit beschränkter Haftung) Geschäftsordnung der Bundesregierung Geschäftsordnung der Bundesregierung Zeitschrift für das Privatrecht der Europäischen Union Zeitschrift für das Privatrecht der Europäischen Union global warming potential Harvard Business Review Harvard Environmental Law Review Harvard Law Review Hydrofluorcarbon German Commercial Code (Handelsgesetzbuch) Haftpflichtgesetz Hoge Raad (Supreme Court for Civil and Criminal Matters in the Nederlands) HSBC Holdings plc inter alia International Court of Justice Case Reports of the International Court of Justice Id est (that is) Inter-American Court on Human Rights International Accounting Standards Board Brazilian institute for the environment and natural resources Brazilian institute of forest development Ibidem (lat.); in the same place International Civil Aviation Organization (ICAO) International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Court of Justice International & Comparative Law Quarterly International Centre for Settlement of Investment Disputes International Centre for Trade and Sustainable Development

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List of Abbreviations Id. ........................................ IEHC .................................. ILC ...................................... ILM ..................................... IMO .................................... Inc. ...................................... Ind. J. Global Legal Stud. infra .................................... ING ..................................... INPE ................................... IoT ...................................... IPC ...................................... IPCC ................................... IPCC ................................... IRENA ............................... IPRax .................................. IRENA ............................... ISBA ................................... ISO ...................................... ISPRA ................................. ITEK ................................... ITLOS ................................. IWRZ ................................. IZVR ................................... J (as in Dowsett J) ........... J. Envtl. L ........................... J. En. & Nat. Res. L. ........ Jan. ...................................... JANA .................................. JBl. ....................................... JEEPL ................................. JETL .................................... JETL .................................... JPL ...................................... jurisPK-BGB ..................... JuS ....................................... JZ ......................................... Kap. .................................... KJ ........................................ km ....................................... Kritischen Aktionäre ...... KSG .................................... L R ...................................... L. .......................................... L.Ed.; L.Ed. 2d .................. LCIL .................................... LDC .................................... leg cit .................................. LG ....................................... LGERA ............................... LL.M. .................................. LLB ..................................... LLC ..................................... Ltd. ......................................

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Idem (same author) High Court of Ireland International Law Commission International Legal Materials International Maritime Organization Incorporated Indiana Journal of Global Legal Studies see below ING-DiBA AG national institute of spacial research Internet of Things Independent Planning Commission Intergovernmental Panel on Climate Change Intergovernmental Panel on Climate Change International Renewable Energy Agency Praxis des Internationalen Privat- und Verfahrensrechts International Renewable Energy Agency International Seabed Authority International Organization for Standardization Istituto Superiore per la Protezione e la Ricerca Ambientale (Institute for Environmental Protection and Research) Indigenous traditional ecological knowledge International Tribunal for the Law of the Sea Zeitschrift für Internationales Wirtschaftsrecht (journal) Internationales Zivilverfahrensrecht Judge or Justice Journal of Environmental Law Journal of Energy & Natural Resources Law January JANA Partners LLC Juristische Blätter Journal for European Environmental and Planning Law Journal of European Tort Law Journal of Education, Teaching and Learning Journal of Planning Law juris PraxisKommentar BGB Juristische Schulung JuristenZeitung Kapitel Kritische Justiz kilometres Dachverband der Kritischen Aktionärinnen und Aktionäre (Umbrella Association of Critical Shareholders) Bundes-Klimaschutzgesetz Law Review Law (loi) United States Supreme Courts Reports, Lawyers’ Edition Lauterpacht Centre for International Law Least developed countries legis citatae Landgericht (German Regional Court) Local Government and Environmental Reports of Australia Master of Laws Bachelor of Laws Limited Liability Company Limited

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List of Abbreviations LUCLUF ............................

LuftVG ............................... LULU ................................. m ......................................... M&A .................................. MBRE ................................. MDR ................................... Melb. Univ. Law Rev. ..... MEM .................................. Minn. L. Rev. .................... mn., mns. ........................... MPEPIL ............................. MPhil .................................. MüKo ................................. MüKoBGB ......................... MüKoZPO ........................ MünchKomm ................... MW .................................... n. ......................................... N.Y.U. J. Int’l L. & Pol ... NAFTA .............................. NAP .................................... NAS .................................... NASA ................................. NDC ................................... NECP ................................. Ned Jur .............................. NEMA ................................ NES ..................................... NGO ................................... NIMBY .............................. NJOZ .................................. NJW .................................... NJW-RR ............................ No. ...................................... NOx .................................... NPPF .................................. NRO ................................... NSW ................................... NSWLEC ........................... NuR .................................... NVwZ ................................. NYT .................................... NZG .................................... OECD ................................. OECD, Accidental Pollution .................................. OGH ................................... OJ ........................................ OJ EU ................................. ÖJZ ..................................... OLG ....................................

Regulation (EU) 2018/841 of the European Parliament and of the Council of 30 May 2018 on the inclusion of greenhouse gas emissions and removals from land use, land use change and forestry in the 2030 climate and energy framework, and amending Regulation (EU) No 525/2013 and Decision No 529/2013/EU (Text with EEA relevance) PE/68/2017/REV/1,OJ 2018, L 156/1 Luftverkehrsgesetz locally unwanted land use metres Mergers and Acquisitions Brazilian emission reduction market Monatsschrift für Deutsches Recht – MDR Zeitschrift für Zivil- und Zivilverfahrensrecht Melbourne University Law Review Master of Environmental Management Minnesota Law Review margin number(s) Max Planck Encyclopedia for Public International Law Master of Philosophy Münchener Kommentar Münchener Kommentar zum Bürgerlichen Gesetzbuch Münchener Kommentar zur Zivilprozessordnung Münchener Kommentar zum Bürgerlichen Gesetzbuch Megawatt note New York University Journal of International Law and Politics North American Free Trade Agreement National Adaptation Plan National Adaptation Strategy national aeronautics and space administration National Determined Contributions National Energy and Climate Plan Nederlandse Jurisprudentie National Environmental Management Act National Energy Strategy Non-Governmental Organisation not in my backyard Neue Juristische Online Zeitschrift Neue Juristische Wochenschrift (journal) Neue Juristische Wochenschrift – Rechtsprechungs-Report Numero (number) nitrogen oxides National Planning Policy Framework Nichtregierungsorganisation New South Wales New South Wales Land and Environment Court Natur und Recht Neue Zeitschrift für Verwaltungsrecht (journal) New York Times Neue Zeitschrift für Gesellschaftsrecht (journal) Organisation for Economic Co-operation and Development OECD, Recommendation on the Application of the Polluter-Pays Principle to Accidental Pollution, C (89) 99 Oberster Gerichtshof (Supreme Court for Civil and Commercial Matters in Austria) Ontario Judgement Official Journal of the European Union Österreichische Juristen-Zeitung Oberlandesgericht (German Higher Regional Court)

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List of Abbreviations ONCA ................................ ONSC ................................. OPA .................................... Orlando .............................. Ors ...................................... P (as in MacDonald P) .. p. .......................................... PA ....................................... Pac. Rim L. & Pol’y J. ..... PACTE ............................... PAD .................................... para ..................................... PAWP ................................ PHG .................................... PLC ..................................... plc ....................................... PNMC ................................ Pol’y Sciences ................... PPP ..................................... PRI ...................................... Proelss ................................ publ. .................................... PV ....................................... QCA ................................... QCCS ................................. QLC .................................... Qld ...................................... QLRT ................................. QSC .................................... R&D .................................... RWE ................................... RabelsZ .............................. RCRA ................................. RECIEL .............................. Reg. ..................................... Rev. ..................................... RG ....................................... RGZ .................................... RIAA .................................. RIW .................................... RL ........................................ RSC ..................................... RSO ..................................... RWE ................................... s (as in s 269) ................... S. .......................................... S.A. ...................................... S.Ct. .................................... SA ........................................ sad ....................................... San Diego J. Climate & Energy L. ........................... Sands/Peel .........................

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Ontario Court of Appeal Ontario Superior Court of Justice US Oil Pollution Act Orlando, Liability, in: Krämer/Orlando (eds), Principles of Environmental Law, Edward Elgar 2018, p. 272 Others President page Paris Agreement Pacific Rim Law & Policy Journal Action Plan for Growth and Transformation of Businesses (Plan d’action pour la croissance et la transformation des entreprises) Planning and Development paragraph Paris Agreement Work Programme Produkthaftungsgesetz private limited company Public Limited Company national policy on climate change Policy Sciences Polluter-Pays Principle Principles for Responsible Investments Proelss, Polluter-Pays, in: Aguila/Viñuales (eds), A Global Pact for the Environment – Legal Foundations, Cambridge University Press 2019, p. 85 publisher Photovoltaic Queensland Court of Appeal Quebec Superior Court Queensland Land Court Queensland Queensland Land and Resources Tribunal Queensland Supreme Court Research and Development RWE AG Rabels Zeitschrift für ausländisches und internationales Privatrecht (Rabel Journal of Comparative and International Private Law) US Resource Conservation and Recovery Act Review of European Community and International Environmental Law Regulation (EU) Review (revue) Reichsgericht Entscheidungen des Reichsgerichts in Zivilsachen Reports of International Arbitral Awards Recht der internationalen Wirtschaft Richtlinie Revised Statutes of Canada Revised Statutes of Ontario RWE AG, formerly Rheinisch-Westfälisches Elektrizitätswerk AG Section Seite (page) Société Anonyme Supreme Court Reporter Sociedade Anónima deforestation alert system San Diego Journal of Climate and Energy Law Sands/Peel, Principles of International Environmental Law, 4th ed., Cambridge University Press 2018

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List of Abbreviations SASB ................................... SBI ....................................... SC ........................................ SC ........................................ SCC ..................................... Schwartz, Principles ........ Schwartz, Research Handbook ......................... SCR/RCS ............................ SDG .................................... SEA ..................................... sect ...................................... SEED .................................. sent ..................................... Shareholder Action Guide .................................. Shell .................................... SIAESP ............................... SIDS .................................... Siemens .............................. SIFAESP ............................ SKCA .................................. SO2 ..................................... SPD ..................................... SRU ..................................... STF ...................................... STJ ...................................... StVG ................................... SUP ..................................... supra ................................... TA ....................................... TAR .................................... TCFD ................................. TEC ..................................... TEHG ................................. TEL ..................................... TEU .................................... Tex. Int. L. J. ..................... TFEU .................................. TGI ..................................... The Hon ............................ Trillium .............................. TUI ..................................... U. Chi. L. Rev. .................. U. Colo. L. Rev. ................ U. Pa. L. Rev. .................... U.Pitt.L.Rev. ...................... U.S. ..................................... UBA .................................... UBS ..................................... UK ....................................... UKSC ................................. ULR .................................... UMAG ...............................

Sustainability Accounting Standards Board Subsidiary Book for Implementation Statutes of Canada Senior Counsel Supreme Court of Canada Schwartz, The Polluter-Pays Principle, in: Krämer/Orlando (eds), Principles of Environmental Law, Edward Elgar 2018, p. 260 Schwartz, The polluter-pays principle, in: Fitzmaurice/Ong/Merkouris (eds), Research Handbook on International Environmental Law, Edward Elgar 2010, p. 243 Supreme Court Report Sustainable Development Goals Strategic Environmental Assessment section School of Environment, Enterprise & Development sentence The Shareholder Action Guide – Unleash Your Hidden Powers to Hold Corporations Accountable Royal Dutch Shell Union of the sugar industries in the state of São Paulo Small island developing states Siemens AG Union of the alcohol manufacturing industries of the state of São Paulo Saskatchewan Court of Appeal Sulfur dioxide Sozialdemokratische Partei Deutschlands Sachverständigenrat für Umweltfragen supreme federal court superior court of justice Straßenverkehrsgesetz Strategische Umweltprüfung see above Administrative Tribunal (Tribunal administratif) Tribunale Amministrativo Regionale (Regional Administrative Court) Task Force on Climate Related Financial Disclosures Treaty establishing the European Community Treibhausgas-Emissionshandelsgesetz Transnational Environmental Law Treaty of the European Union Texas International Law Journal Treaty on Functioning of the European Union Court of First Instance (Tribunal de grande instance) The Honourable Trillium Asset Management TUI AG University of Chicago Law Review University of Colorado Law Review University of Pennsylvania Law Review University of Pittsburgh Law Review United States (of America) Umweltbundesamt UBS Group AG United Kingdom United Kingdom Supreme Court Uniform Law Review German Act on Corporate Integrity and Modernisation of Avoidance and Rescission Rights (Gesetz zur Unternehmensintegrität und Modernisierung des Anfechtungsrechts)

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List of Abbreviations UmweltHG ........................ UmweltR ............................ UmwRG ............................. UN ...................................... UN FCCC ......................... UNCITRAL ...................... UNCLOS ........................... UNEP ................................. UNEP FI ............................ UNFCCC ........................... UNTC ................................ UNTS ................................. UNTS ................................. UPR .................................... Urt. ...................................... US ....................................... USA .................................... USchadG ........................... USD .................................... UTR .................................... UVP .................................... UVPG ................................. v. .......................................... Va. J. Int’l L. ..................... Vanguard ........................... VersR .................................. VG ...................................... vol. ...................................... VwGO ................................ VwVfG ............................... WBGU ............................... WD ..................................... WEF .................................... WEF/BCG Report ........... WHG .................................. WM .................................... WMO ................................. WP ...................................... WSJ ..................................... WTO .................................. WWF .................................. Yale J. Int’l L. Online ...... Yale L.J. .............................. YbPIL ................................. ZaöRV ................................ ZEuP ................................... ZfU ...................................... ZGR .................................... ZHR .................................... ZIP ...................................... ZPO .................................... ZUR .................................... ZZPInt ................................

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Umwelthaftungsgesetz Umweltrecht Umwelt-Rechtsbehelfsgesetz United Nations United Nations Framework Convention on Climate Change United Nations Commission On International Trade Law UN Convention on the Law of the Sea United Nations Environment Programme United Nations Environment Programme Finance Initiative United Nations Framework Convention on Climate Change United National Treaty Collection United Nations Treaty Series United Nations Treaty Series Umwelt- und Planungsrecht Urteil United States United States of America Umweltschadensgesetz United States Dollar Umwelt- und Technikrecht Umweltverträglichkeitsprüfung Gesetz über die Umweltverträglichkeitsprüfung versus/von Virginia Journal of International Law Vanguard Group Zeitschrift für Versicherungsrecht, Haftungs- und Schadensrecht Verwaltungsgericht volume Verwaltungsgerichtsordnung Verwaltungsverfahrensgesetz Wissenschaftlicher Beirat der Bundesregierung für Globale Umweltveränderungen Wissenschaftlicher Dienst World Economic Forum The Net Zero Challenge: Fast Forward to Decisive Action, Insight Report in collaboration with Boston Consulting Group Wasserhaushaltsgesetz Zeitschrift für Wirtschafts- und Bankrecht (journal) World Meteorological Organization (Weltorganisation für Meteorologie) Write Petition The Wall Street Journal World Trade Organisation World Wide Fund For Nature Yale Journal of International Law online Yale Law Journal Yearbook of Private International Law Zeitschrift für ausländisches öffentliches Recht und Völkerrecht Zeitschrift für Europäisches Privatrecht Zeitschrift für Umweltpolitik und Umweltrecht Zeitschrift für Unternehmens- und Gesellschaftsrecht (journal) Zeitschrift für das gesamte Handelsrecht und Wirtschaftsrecht (journal) Zeitschrift für Wirtschaftsrecht (journal) Zivilprozessordnung (German Code of Civil Procedure) Zeitschrift für Umweltrecht (journal) Zeitschrift für Zivilprozess International

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List of Authors Arvid Arntz is a doctoral researcher at the chair for Private Law, Commercial Law and Economic Analysis of Law in the Law Faculty of Humboldt-Universitaet zu Berlin, Germany. Timothy Arvan, BA (Hons.) (University of Michigan), MPhil (Cantab), is Associate Fellow at the Centre for International Sustainable Development Law (CISDL), and Secretariat Coordinator at Climate Law and Governance Initiative (CLGI). Justine Bell-James, LLB(Hons), GradDipLegalPrac, PhD(QUT) is Associate Professor at the University of Queensland School of Law in Brisbane (Australia). Luciano Butti, Lecturer of International Environmental Law, Department of Environmental Engineering, University of Padua (I); Life Member at the Clare Hall College, University of Cambridge (UK); Of Counsel at B&P Law Firm, Verona and Milan (Italy). Chantalle Byron, BSc (Acadia University), LLB Hons (University of Essex), LLM (Cantab), is Associate Fellow at the CISDL, and Secretariat Coordinator at Climate Law and Governance Initiative (CLGI). Marie-Claire Cordonier Segger, DPhil (Oxon), MEM (Yale), LLB/BCL (McGill), BA Hons, is CISDL Senior Director, Full Professor of Law, School of Environment, Enterprise & Development (SEED) at the University of Waterloo (Canada). Kars de Graaf is professor of Public Law and Sustainability, Groningen Centre of Energy Law and Sustainability (GCELS), Faculty of Law, University of Groningen (The Netherlands) and chair of the Dutch Environmental Law Association. Katrin Deckert, docteur en droit, D.E.A./D.E.S.S. (Univ. Paris 1), LL.M. (HU Berlin), is Associate Professor (Maître de conférences) at Paris Nanterre University (France). Christian Duve is a professor and one of the co-founding partners of the law firm V29 Legal PartGmbB in Frankfurt am Main. Max Ehrl, Notary Assessor at the Bavarian Chamber of Notaries and director of the German Notaries’ Association, Berlin. Formerly he was Professor Habersack’s research assistant. Aude-Solveig Epstein holds a Master’s degree in Economic Law from Sciences Po Paris and a Ph. D from the University of Nice. She is an Assistant Professor (Maître de conférences) at Paris Nanterre University. Daniel Farber holds the Sho Sato Chair in Law and is the director of the Center for Law, Energy, and the Environment at the University of California, Berkeley. Claudio Franzius, Prof. Dr., is professor for public law and director of the Research Center for Europan Environmental Law, University of Bremen, Law Faculty. Thomas Gross is Professor of Public Law, European Law and Comparative Law at the University of Osnabrueck. Mathias Habersack holds the Chair of Private and Business Law at the Ludwig-MaximiliansUniversity Munich. Olga Hamama is co-founding partner of the law firm V29 Legal PartGmbB in Frankfurt am Main. Sébastien Jodoin is an Assistant Professor in the McGill Faculty of Law, where he holds the Canada Research Chair in Human Rights and the Environment. Wolfgang Kahl, Prof. Dr. Dr. h.c., is professor for public law, director of the Institute of German and European Administrative Law and director of the Research Center for Sustainability Law, University of Heidelberg, Law Faculty.

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List of Authors Eva-Maria Kieninger, Prof. Dr., is professor for German and European Private Law and Private International Law at the Julius-Maximilians-University Wuerzburg. Anne Kling is a doctoral researcher at the Research Center for European Environmental Law (FEU) at the University of Bremen. Michael Kloepfer, Prof. em. Dr., Humboldt University of Berlin; emeritus professor for constitutional law and administrative law, European Union law, environmental law, public finance and economic law; director of the Environmental Law Research Centre. Thomas Lennarz is a partner at CMS in Stuttgart and the head of CMS’s German dispute resolution group. Morgan McGinn is a Research Associate with the Canada Research Chair in Human Rights and the Environment and a BCL/JD student at the McGill Faculty of Law. Steven McNab is a partner at Cleantech Cadre. Jan-Marcus Nasse, Dr., was a research assistant at the Institute of Environmental Physics at Heidelberg University. Laura Nasse is a research assistant at the Institute for Comparative Law, the Conflict of Laws and International Business Law at Heidelberg University. Rico David Neugärtner, LL.M. (Cornell), Humboldt University of Berlin; research assistant for constitutional law and environmental law; doctoral student in constitutional law, comparative law, law and the humanities. Stephanie Nitsch is a research and teaching assistant (post doc) at the Department for European, International and Comparative Law, University of Vienna (Austria). Birsha Ohdedar is a lecturer at the School of Law and Human Rights Centre at the University of Essex. Séverin Pabsch, attorney of law (Hamburg). Mehrdad Payandeh, Dr. iur., LL.M. (Yale), is Professor of International Law, European Law, and Public Law at Bucerius Law School, Hamburg, and a Member of the United Nations Committee on the Elimination of Racial Discrimination. Kai Purnhagen, Chaired Professor of Food Law, University of Bayreuth, Faculty of Life Sciences: Food, Nutrition and Health (Campus Kulmbach). Eckard Rehbinder is an Emeritus Professor of Economic and Environmental Law and Comparative Law at the Law Faculty of the Goethe-University Frankfurt am Main. Johannes Saurer, Prof. Dr. LL.M. (Yale), is Professor for Public Law, Environmental Law, Law of Infrastructure and Comparative Law at the University of Tuebingen. Pavan Srinivas, BA LLB Hons (National Law School of India University), LLM (Cantab), is Associate Fellow at the CISDL, and Secretariat Coordinator at Climate Law and Governance Initiative (CLGI). Marie-Christin Stürmlinger is a doctoral researcher at the Institute of German and European Administrative Law and at the Research Center for Sustainability Law, University of Heidelberg, Law Faculty. Gerrit van der Veen is professor of Environmental Law, Faculty of Law, University of Groningen (The Netherlands) and lawyer/partner at AKD, Rotterdam (The Netherlands). Roda Verheyen, attorney of law (Hamburg). Christina Voigt, Prof. Dr., PhD (Oslo), LL.M. Hons (Auckland), is professor of law at the University of Oslo, Department of Public and International Law, chair of the Climate Change Specialist Group of the IUCN World Commission on Environmental Law, senior legal counsel at CISDL and co-chair of the Paris Agreement’s Implementation and Compliance Committee (PAICC).

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List of Authors Gerhard Wagner, Prof. Dr. LL.M. (University of Chicago), holds the chair for Private Law, Commercial Law and Economic Analysis of Law in the Law Faculty of Humboldt-Universitaet zu Berlin, Germany. He is also an external member of the Max-Planck-Institute of Private Law in Hamburg. Gabriel Wedy, Ph.D and LL.M in environmental and climate change law. He is a federal judge and a professor of the graduate and undergraduate programmes of Universidade do Vale do Rio dos Sinos (Unisinos), environmental law professor at the Brazilian Federal Judiciary Superior School. Marc-Philippe Weller, Prof. Dr., Licencié en droit (Montpellier), is director of the Institute for Comparative Law, the Conflict of Laws and International Business Law at Heidelberg University. Rüdiger Wolfrum, Prof. Dr. Dres h.c., is director emeritus of the Max Planck Institute for Comparative Public Law and International Law, Heidelberg and member of the Law Faculty, University of Heidelberg.

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INTRODUCTION CLIMATE CHANGE AS A CHALLENGE FOR GLOBAL GOVERNANCE, COURTS AND HUMAN RIGHTS Bibliography: Bodansky, The Art and Craft of International Environmental Law, Harvard University Press, (2011); Bodansky/Brunnée/Hey (eds.), The Oxford Handbook of International Environmental Law, Oxford University Press, (2008); Boyle/Redgwell, International Law and the Environment, 4th ed., Oxford University Press, (2019); Committee on the Elimination of Discrimination Against Women, Committee on Economic, Social and Cultural Rights, Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, Committee on the Rights of the Child, and Committee on the Rights of Persons with Disabilities, Joint Statement on “Human Rights and Climate Change”, (16 September 2019) http://https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=24998&LangID=E; Crawford, Commentary on Draft Articles on State Responsibility, Oxford University Press, Oxford, (1999); Das/ van Asselt/Droege/Mehling, Towards a Trade Regime that Works for the Paris Agreement, Economic & Political Weekly, Vol. 54, Issue No. 50, (December 2019); Desierto, “Environmental Damages, Environmental Reparations, and the Right to a Healthy Environment: The ICJ Compensation Judgment in Costa Rica v Nicaragua and the IACtHR Advisory Opinion on Marine Protection for the Greater Caribbean” EJIL: Talk!, 14 February 2018, available at www.ejiltalk.org, (accessed 3 June 2018); Feria-Tinta, “The Rise of Environmental Law in International Dispute Resolution: Inter-American Court of Human Rights issues Landmark Advisory Opinion on Environment and Human Rights” EJIL.Talk!, (26 February 2018), available at www.ejiltalk.org , (accessed 24 April 2019); Freeman, “Responsibility of States for Unlawful Acts of their Armed Forces” (1955-II) 88 Recueil des Cours de l’Academie de Droit International de la Haye, (1955); Intergovernmental Panel on Climate Change (IPCC), Global Warming of 1.5°C: An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty, (October 2018); Intergovernmental Panel on Climate Change (IPCC), Special report on climate change, desertification, land degradation, sustainable land management, food security, and greenhouse gas fluxes in terrestrial ecosystems, Summary for Policymakers, (2019); Intergovernmental Panel on Climate Change (IPCC), Special Report on the Ocean and Cryosphere in a Changing Climate (September 2019), Summary for Policymakers, (2019); Intergovernmental Panel on Climate Change (IPCC), Summary for Policymakers. In: Global Warming of 1.5°C. An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty, [Masson-Delmotte, V., P. Zhai, H.-O. Pörtner, D. Roberts, J. Skea, P.R. Shukla, A. Pirani, W. Moufouma-Okia, C. Péan, R. Pidcock, S. Connors, J.B.R. Matthews, Y. Chen, X. Zhou, M.I. Gomis, E. Lonnoy, T. Maycock, M. Tignor, and T. Waterfield (eds.)], World Meteorological Organization, (2018); International Law Association, ‘Due Diligence in International Law’ (Reports) http://www.ila-hq.org/index.php/study-groups; Kulesza, Due Diligence in International Law, Brill Nijhoff, (2016); Newcombe/Paradell, Law and Practice of Investment Treaties: Standards of Treatment, (2009); Koivurova, “Due Diligence” in Max Planck Encyclopedia of Public International Law, Oxford University Press, Oxford, (2013); United Nations Environment Programme, Emissions Gap Report 2019, (November 2019); United Nations Security Council, Gaps in International Environmental Law and Environment-related Instruments: Towards a Global Pact for the Environment – Report of the SecretaryGeneral, UN Doc A/73/419, (30 November 2018); Sands et al., Principles of International Environmental Law, 4th ed., Cambridge University Press, (2018); Vega-Barbosa/Aboagye, “Human Rights and the Protection of the Environment: The Advisory Opinion of the Inter-American Court of Human Rights” EJIL:Talk!, (26 February 2018), available at www.ejiltalk.org (accessed 24 April 2019); Verheyen, Climate Damage and International Law: Prevention Duties and State Responsibilities, Martinus Nijhoff, (2005); Voigt, “Climate Change and Damages” in C Carlarne, K Grey and R Tarasofsky (eds.) Oxford Handbook of International Climate Change Law, Oxford University Press, (2016); Voigt, ‘The Paris Agreement: What is the standard of conduct for parties?’, Questions of International Law, (24 May 2016) http://www.qil-qdi.org/paris-agreement-standard-conduct-parties/; Voigt/Ferreira, ‘‘Dynamic Differentiation’: The Principles of CBDR-RC, Progression and Highest Possible Ambition in the Paris Agreement,’ Transnational Environmental Law 5(2), Cambridge University Press, (2016).

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Introduction Contents I. Introduction: climate change – a global threat........................................ II. Challenges (and possibilities) for global governance and international law ............................................................................................. III. The role of courts ........................................................................................... 1. Addressing the causes of climate change.............................................. 2. Addressing the consequences of climate change................................. 3. Response measures to climate change ................................................... IV. Major legal issues ............................................................................................ V. Potential role for litigation in national courts..........................................

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I. Introduction: climate change – a global threat Climate change is a threat of unprecedented dimensions, both in scope, scale, time and space. If unresolved, it has the potential to undermine the basis of (relative) global stability and order. Scientists have over many decades warned about the human impact on the climate system, but never have they been so clear and never expressed their concern with greater certainty and urgency as in the recent reports of the Intergovernmental Panel on Climate Change (IPCC).1 2 The 2018 special report by the IPPC “Global Warming of 1.5 Degrees” shows that if global warming exceeds 1.5 degrees Centigrade, the consequences will be deeply disruptive for human systems (economic, social, even legal), as well as for ecosystems and species.2 Moreover, if warming continues up to 2 degrees or more, the consequences will be catastrophic. Warming of 1.5 degrees Centigrade and corresponding concentrations of greenhouse gases (GHGs) in the atmosphere will increase the probability of severe droughts and heavy precipitation in several regions, lead to sea level rise, ocean de-oxygenation and increased ocean acidity3, impact biodiversity and ecosystems and create significant climate-related risks to health, livelihoods, food security, water supply and human security. The impacts intensify and self-enforce with greater warming. For example, already observed ice loss from Antarctica may be the onset of an irreversible ice sheet instability which has the potential to lead to sea-level rise of several meters within a few centuries.4 Moreover, at global warming of 1.5 degrees Centigrade, most natural and human systems will reach the limit of their adaptive capacity; meaning that warming above and beyond leads to abrupt and unpredictable change. And yet, we are currently headed towards 3.2 degrees Centigrade warming.5 1

1 Intergovernmental Panel on Climate Change (IPCC), Global Warming of 1.5°C: An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty (October 2018) Summary for Policymakers 3–24 (IPCC 2018); IPCC, Special report on climate change, desertification, land degradation, sustainable land management, food security, and greenhouse gas fluxes in terrestrial ecosystems, Summary for Policymakers (IPCC, 2019a); IPCC, Special Report on the Ocean and Cryosphere in a Changing Climate (September 2019), Summary for Policymakers (IPCC, 2019b). 2 IPCC, Summary for Policymakers. In: Global Warming of 1.5°C. An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty, (World Meteorological Organization, Geneva, Switzerland), 32 pp (IPCC, 2018). 3 IPCC, 2019 b. 4 IPCC 2019b, 11. 5 United Nations Environment Programme, Emissions Gap Report 2019 (Report, November 2019), https://www.unenvironment.org/resources/emissions-gap-report-2019 (‘UNEP’).

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Climate change as a challenge for global governance, courts and human rights

The extent to which those future risks will materialise depends on the choices made 3 today, in particular on the ambition of climate change mitigation measures. The timewindow for resolving this challenge is rapidly narrowing. According to scientists, a fundamental, system-wide re-organisation across technological, economic and social factors needs to happen within the next 10–15 years; the ‘critical decade’ in order to be able to reduce GHG emissions to net-zero by around 2050 and get to negative emissions thereafter.6 This is a daunting task. The IPCC states:7 4 “Pathways limiting global warming to 1.5°C with no or limited overshoot would require rapid and far-reaching transitions in energy, land, urban and infrastructure (including transport and buildings), and industrial systems. These systems transitions are unprecedented in terms of scale, but not necessarily in terms of speed, and imply deep emissions reductions in all sectors, a wide portfolio of mitigation options and a significant upscaling of investments in those options.” If such transformative changes come too late, we will have to deal with the 5 consequences of our collective inactions, which most likely will be unravelling and catastrophic. These consequences could set an end to the order as we know it and give rise to unilateralism, instability, insecurity and the use of might (if not chaos and anarchy). Law, on all levels – international, regional and national, is an important lever in the 6 necessary transformation. It can help to tilt the scale towards sustainable development and change by spurring global action to limit climate change and address its adverse effects. New climate relevant legislation has to be devised, adopted, implemented and enforced. Existing laws and regulations need to be “climate proofed”. In the absence of effective implementation or missing political will or in the face of 7 (risk of) harmful climate impacts, courts have started to complement the legal picture. Climate litigation has become a wide-spread phenomenon in which citizens and interest groups are trying to hold governments and companies accountable for omissions or ineffective actions on climate change or the adverse effects thereof. Litigation and the turn to courts as a legitimate means to protect the atmosphere from excessive anthropogenic greenhouse gas emissions has so far largely been strategic in order to raise awareness and instigate government and business action. It may, however, hold the key for kicking real transformation into motion. Perhaps only when courts as the third pillar of power assume their rightful role in holding governments and companies accountable for their insufficient action on the climate challenge, change will change happen? In any case, it is perhaps safe to say that the role of law has, most likely, never been more important.

II. Challenges (and possibilities) for global governance and international law Coming back to the 2018 IPCC report, it tells in very clear terms what needs to be 8 done. Global net emissions need to get down to net zero around 2050 in order to keep global warming close to 1.5 degrees Centigrade.8 This means that fossil-fuel based emissions have to be entirely phased out in about 30 years. Thereafter, net emissions 6

IPCC 2018. Ibid, at C.2, p 17. 8 IPCC 2018, 12. 7

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have to be negative; meaning that we will have to pump more CO2 out of the air than what is being emitted. However, it stresses that this can only be achieved through transformative change: the fundamental system-wide re-organisation across economic, social and technological factors, including paradigms, goals and values.9 The IPCC specifies that these systems transitions are unprecedented in terms of scale, but not necessarily in terms of speed.10 In other words, we have done quick changes before, but never at this scale. All IPCC reports call on strengthening the global response and enhancing international cooperation. Climate change as a collective action problem can only be effectively addressed through transformative international governance: a system of intensifying international cooperation, coordination management and implementation support. Yet, there are several challenges: The spatial and temporal scales of climate change exceed time and territorial horizons of most ‘traditional’ governance arrangements, which challenges the ability to prepare for and respond to global and long-term changes. What is necessary are profound changes in governance arrangements that tackle complex risks across scales, jurisdictions, sectors, policy domains and planning horizons.11 In other words, there is a crucial role for international law and governance not only in creating a global level playing field that avoids free riding, but in creating the legal and systemic structure for a coordinated response commensurate with this global challenge. What would be the role of international law in bringing about transformative change? International law provides a starting point – but its shortcomings would have to be addressed. International environmental law consists of hundreds of treaties, but one important common denominator, highlighted by the UN Secretary General’s Report on ‘Gaps in International Environmental Law’, is the lack of effective implementation of those treaties.12 For example, the Nationally Determined Contributions (NDCs) of Parties to the Paris Agreement are not yet ambitious enough to reach the global temperature goal set up by that Agreement, but will need to progress and increase in their level of climate change mitigation ambition to the highest possible level every five years in order for Parties to collectively achieve the long-term temperature goals set out in article 2 of the Agreement.13 Lawyers will need to investigate the reasons for inadequate ambition and implementation. There can be many. There can be financial, technological or capacity constraints or the absence of political will or of effective enforcement regimes. Yet, there can be legal reasons, too. They can manifest themselves in inadequate or missing transformation and/or implementation of international obligations into national law; insufficient enforcement, conflicting legal norms or contestations in courts. Here, lawyers have an important role to play in creating and supporting the legal and regulatory environment for effective implementation; if necessary through courts! One should, however, be careful to not conflate the critique of inadequate implementation with the critique of the existing international law itself. For example, the problem with insufficient NDCs under the Paris Agreement is not the Agreement but the fact that its processes have not yet cranked in motion. In fact, progressively increasing the currently insufficient ambition of parties’ NDCs is the Agreement’s very raison d’être. 9

Ibid 6. IPCC 2018, 15. 11 IPCC 2019b, 34. 12 Gaps in International Environmental Law and Environment-related Instruments: Towards a Global Pact for the Environment – Report of the Secretary-General, UN Doc A/73/419 (30 November 2018). 13 UNEP, Executive summary. 10

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Climate change as a challenge for global governance, courts and human rights

The Paris Agreement is the most promising international agreement we have. Its nature is catalytic and facilitative and its processes iterative and coordinated in order to get states where they need to be – over time, together. Lawyers need to defend it, use it in international and domestic courts, base their legal arguments on it; in particular its goals, its principles of progression and the need to reflect highest possible ambition in NDCs.14 If the international legal community dismisses it, then we are shooting ourselves in the foot. There is no other comprehensive international climate agreement. It took states almost a quarter of a century to get there; it is very highly unlikely that there will be another one within the foreseeable future. At the very least, we need to give it a chance. Lawyers therefore need to use existing multilateral environmental agreements for all they are worth: promoting their relevance in the development, application and interpretation of laws, especially within other legal areas, such as trade, investment, human rights. Lawyers need to insist on their application in domestic legislation; as well as raise their importance in the international discourse, and claim their relevance in litigation in international and domestic courts. International law, of course, has yet to live up to the challenge of spurring global transformative change. Changes of a more fundamental character are necessary – in the longer run in order to bring about and support such change. The general structure of international law, including environmental law, is by its nature fragmented.15 Environmental issues are being dealt with by sectoral, issuespecific, largely isolated treaties, often spatially limited to specific regions. There is no overarching general framework which brings them together under the same normative umbrella and provides for a certain degree of coordination and coherence. Neither is there any tool that levels out the uneven playing field between short-term specific economic interest and the long-term, accumulative nature of environmental goals. This situation impedes the effectiveness of international law in solving environmental challenges.16 International environmental law perhaps more than any other field of international law, depends on coordination between its different parts – and other relevant international agreements – with the aim of creating coherence. The current situation sits uneasy with the temporal and spatial scale of environmental changes within the atmosphere, biosphere, cryosphere and hydrosphere – which consist of complex, interdependent and interconnected systems. In other words, it needs to a greater extent mirror the unchanging and universal laws of nature. It should therefore, at a minimum, a political and legal task to develop mutually supportive international goals and targets. These international targets and goals need to be kept under constant review, updated and kept in alignment with best available science. This means that they have to be dynamic; allowing for adjustment and refinement without lengthy negotiation processes. Mutually supportive international goals and targets would help decision-making and implementation at the national level, to adopt more holistic, integrated policies and measures, across scales, jurisdictions, sectors, policy domains and planning/budgeting horizons. 14 Paris Agreement articles. 2.1 and 4.3. See also, Voigt/Ferreira, ‘Dynamic Differentiation’: The Principles of CBDR-RC, Progression and Highest Possible Ambition in the Paris Agreement, (2016) 5 (2) Transnational Environmental Law 285. 15 Boyle/Redgwell, International Law and the Environment, Oxford University Press, 4th ed, 2019); Sands et al., Principles of International Environmental Law, Cambridge University Press, 4th ed, 2018; Bodansky, The Art and Craft of International Environmental Law, Harvard University Press, 2011; Bodansky/Brunnée/Hey (eds.), The Oxford Handbook of International Environmental Law, Oxford University Press, 2008. 16 See supra (fn. 12), Summary.

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In developing cross-sectoral approaches and goals complex risks need to be tackled. This requires that direct and indirect, distant and cumulative impacts need to be taken into account. In the face of complexity and uncertainty, this might require pre-emptive and precautionary actions in regulation and management to avoid, mitigate and restore the deterioration of nature and climatic stability. Important is also that international standards and goals, can be broken down to national, sub-national and even individual action; that they are easily understandable, measurable, implementable and reportable. In developing such goals and corresponding policies and measures, there needs to be better and stronger inclusion of the voices of vulnerable and affected communities, especially effective participation of indigenous peoples, youth and future generations. But, simply setting new targets is not enough if they are not met. These targets need to translate into adequate and effective action. There is therefore an urgent need for more coordinated and concerted implementation structures. International law needs to give clear guidance to states on how to improve their individual and collective performance. In order to spur states into coordinated actions, international law has to be catalytic and facilitative in nature and create conditions under which parties progressively and with a certain degree of flexibility reduce their impact on natural systems through coordinated, iterative policy shifts. This takes time – but in the absence of clear, binding standards, at a minimum, states already have a legal duty: they must act with due diligence in avoiding environmental harm to other states’ territories and to areas beyond any jurisdiction. Accordingly, each state must apply its best effort and take all appropriate and adequate measures according to its capabilities and, in proportion to the risk of environmental harm, in addressing an environmental concern.17 This standard of care already is international law and the development of most future obligations in international environmental law will, in one form or the other, be based on it. Other steps, as identified in the report by the UN Secretary General, would be to increase the coordination between different regimes by (i) creating cooperation between conventions; (ii) mapping of existing global and regional action plans and agreements to create an overview of coverage and identify inter-linkages; (iii) using the same reporting channels for reporting and/or monitoring processes (‘integrated reporting’); and (iv) sharing of lessons-learned and best practices among regimes. Potential conflicts between treaty regimes can further be managed by using legal means of conflict clauses, mutual supportiveness, or the application of the interpretive principle of ‘systemic integration’ contained in Article 31.3(c) of the Vienna Convention on the Law of Treaties.18 Importantly, international law needs to strongly draw private actors into its force field and to set out new frameworks for private sector investment and innovation. This would need to include fundamental reforms of economic and financial systems, including subsidies and taxes, incentive programs, how to spur innovations, patents etc. Trade agreements and commodities and derivative markets should be reformed to be able to react to the challenges generated by displacement of unsustainable consumption and production, and need to decouple improvements in well-being (economic or 17 See, e.g., International Law Association, Due Diligence in International Law (Reports), available at http://www.ila-hq.org/index.php/study-groups; see also Kulesza, Due Diligence in International Law, Brill Nijhoff, 2016. See also, in the context of the Paris Agreement: Voigt, The Paris Agreement: What is the standard of conduct for parties?, Questions of International Law (24 May 2016), available at http://www. qil-qdi.org/paris-agreement-standard-conduct-parties/. 18 See supra (fn. 12), 83.

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not) from fossil fuel use, land use and conservation, pollution and unsustainable economic growth.19 This requires not only the internalization of external environmental costs. In fact, it requires rethinking of the concept of economic growth and its legal underpinnings. Economic development needs to be sustainable. Unchecked growth, for growth’s sake, is not. But international law is tightly knit to the current conventional paradigm of unfettered economic growth – which is the cause of most environmental problems. We will have to rethink which elements of the international legal system are fit for a transformative change, which need to be reformed – and which need to be discharged. Some principles and even laws and treaties might not be fit for purpose. This future of international law is one where it guides the sustainable development of resilient ecological, social, and economic systems in the face of uncertainty and complexity, while taking account of global differences in challenges and needs as well as global inequalities. In-built flexibility, system-science based goals and dynamic developments based on principles such as progression and highest ambition, are some of the features that international law might have to exhibit in order to remain relevant and effective. Eventually, international law would need to unite and guide actors, public and private, in the system-wide re-organization and reformation across sectors and borders to promote (and enforce) global sustainable development within the boundaries set by the thresholds of the atmosphere, biosphere and hydrosphere thresholds. This does not only apply to the silo of international environmental law – but needs to inform and be integrated into all areas of international regulation, including trade, investment, data protection, human rights etc. Given the slow pace of international negotiation processes and the protection of vested, sovereign or commercial interests, these suggestions might sound somewhat utopian. But rather than being an apology for the status quo of international affairs, international law and law-makers can, should and must aspire to create a better, sustainable world – in the same spirit which informed the drafters of the UN Charter. The path towards transformative change is not an easy one, but the alternative is worse; much worse.

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III. The role of courts The current groundswell of climate litigation is complementing the picture of 35 governance challenges – and possibilities. There are, at least, three possible scenarios where courts come into the climate picture.

1. Addressing the causes of climate change The first concerns increased action addressing the causes of climate change through 36 the reduction of GHGs (“mitigation”). In this context, in many cases worldwide plaintiffs are seeking to hold governments accountable to legislative and policy commitments (nationally or internationally) to reduce GHG emissions or increase removals.20 19 See for an account of the interaction between the Paris Agreement and the international trade regime: Das/van Asselt/Droege/Mehling, Towards a Trade Regime that Works for the Paris Agreement, Economic&Political Weekly, Vol. 54, Issue No. 50, 21 December 2019. 20 Recent examples include: Commune de Grande-Synthe v France (2019), where the municipality of Grande-Synthe sued the French government for insufficient action on climate change. The suit was filed in January 2019 in the Conseil d’Etat, the highest administrative court in France. Another case, Notre Affaire à Tous v France, was filed by non-profit organisations. An example from Ireland is Friends of the

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Over the last decade, laws codifying national and international responses to climate change have grown in number, specificity, and importance. As these laws have recognised new rights and created new duties, litigation seeking to challenge either their validity or their particular application has followed. So too has litigation aimed at pressing legislators and policymakers to be more ambitious in their approaches to climate change. In addition, litigation seeking to fill the gaps left by legislative and regulatory inaction has also continued. Plaintiffs in these cases are mainly sub-state (municipalities) or non-state actors (individuals or organisations). 37 The most prominent case so far is Urgenda Foundation v State of the Netherlands.21 In 2015 Urgenda, a Dutch environmental group, sued the government of the Netherlands in the Hague District Court to require the state to increase its level of climate change mitigation ambition. The court ordered the state to limit GHG emissions to 25 % below 1990 levels by 2020, finding the government’s existing pledge to reduce emissions by 17 % insufficient to meet the state’s fair contribution toward the goal of keeping global temperature increases within two degrees Centigrade of pre-industrial conditions. The court concluded that the state has a duty of care to take climate change mitigation measures due to the “severity of the consequences of climate change and the great risk of climate change occurring”. The Dutch government submitted 29 grounds of appeal. On 9 October 2018, the Hague Court of Appeal upheld the District Court’s ruling, concluding that by failing to reduce greenhouse gas emissions by at least 25 % by the end of 2020, the Dutch government is acting unlawfully in contravention of its duty of care under arts 2 and 8 of the European Convention on Human Rights (ECHR).22 The court recognised Urgenda’s claim under art 2 of the ECHR, which protects a right to life, and art 8 of the ECHR, which protects the right to private life, family life, home, and correspondence. The Dutch government appealed the decision and the Dutch Supreme Court upheld in 2019 the judgment of the District Court.23 38 The legal bases of current climate claims differ. Some are based on violation of international law, while most legal bases are domestic laws, non-contractual obligations (especially the duty of care and public trust doctrine) and constitutional law. Others claim a human rights based due diligence requirement to adopt all appropriate measures to prevent infringements. In the Urgenda case, for example, the Supreme Court based its finding on the protection of human rights of the ECHR. It states that “the ECHR requires the states which are parties to the convention to protect the rights and freedoms established in the convention for their inhabitants. Article 2 ECHR protects the rights to life, and Article 8 ECHR protects the right to respect for private and family life. … [A] contracting state is obliged by these provisions to take suitable measures if a real and immediate risk to people’s lives or welfares exists and the state is aware of that risk.”24 39 Importantly, the Court noted that when determining suitable measures, account needs to be taken of the magnitude and immediacy of the risk. Where environmental Irish Environment v Ireland (2019). Friends of the Irish Environment filed suit in the High Court, arguing that the Irish National Mitigation Plan, which seeks to cut emissions by 80 % by 2050 compared to 1990 levels, is not “fit for purpose” because it is not designed to achieve substantial emissions reductions within the next few decades. The case was argued before the High Court on 22 January 2019. 21 Urgenda Foundation v State of the Netherlands (Ministry of Infrastructure and the Environment), judgment of 24 June 2015, Rechtbank Den Haag C/09/456689/HA ZA 13-1396. 22 State of the Netherlands (Ministry of Infrastructure and the Environment) v Urgenda Foundation, judgment of 9 October 2018, Gerechtshof Den Haag ECLI:NL:GHDHA:2018:2610; 200.178.245/01. 23 The State of the Netherlands v Stichting Urgenda, Hoge Raad (Supreme Court of the Netherlands) Number 19/00135, judgment of 20 December 2019, ECLI:NL:HR:2019:2007. 24 Ibid.

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hazards threaten large groups or the population as a whole – as it was found in the case of climate impacts – the obligation requires to apply measures even if the risk only materializes over the long term. Suitable measures are those that are not impossible or disproportionately economically burdensome, and need to be suitable to avert the imminent hazard as much as reasonably possible. In determining the obligation of the Netherlands, the Court focused primarily on the obligation of each state to do “its part”.25 In this context the Court stated that “each country is responsible for its own share… a country cannot escape its own share of the responsibility to take measures… in proportion to its share.” It appears that the Court defined this share by the nature and scope of the risk, as well as the specific capability, responsibility and possibility of the state to act. In other cases, litigants are making arguments for climate action based on the public trust doctrine, which assigns the state responsibility for the integrity of a nation’s public trust resources for future generations.26 Such claims raise questions of individuals’ fundamental rights and intergenerational equity, as well as concerns about the balance of powers among the judicial, legislative and executive branches or functions of governments. Not only governments are being held accountable to climate mitigation measures. Also private companies, responsible for the extraction of fossil fuels, are starting to be at the centre of court action. Recently, Milieudefensie (Friends of the Earth) Netherlands, an environmental organisation, and co-plaintiffs launched a court summons alleging Shell’s contributions to climate change violate its duty of care under Dutch law and human rights obligations. The case was filed in The Hague Court of Appeals on 5 April 2019. The plaintiffs seek a ruling from the court that Shell must reduce its CO2 emissions by 45 % by 2030 compared to 2010 levels and to zero by 2050, in line with the Paris Agreement.27 This case builds on the landmark Urgenda decision. In the suit against Shell, plaintiffs extend this argument to private companies, arguing that given the Paris Agreement’s goals and the scientific evidence regarding the dangers of climate change, Shell has a duty of care to take action to reduce its greenhouse gas emissions. Plaintiffs base this duty of care argument on art 6:162 of the Dutch Civil Code as further informed by Articles 2 and 8 of the ECHR, which guarantee right to life (art 2) and private life, family life, home, and correspondence (art 8). They outline how Shell’s long knowledge of climate change, misleading statements on climate change, and inadequate action to reduce climate change help support a finding of Shell’s unlawful endangerment of Dutch citizens and actions constituting hazardous negligence. In many of these cases, the provisions of the Paris Agreements, most prominent the global temperature threshold included in article 2.1(a), as well as the normative expectations of progression and highest possible ambition (article 4.3) are applied in order to interpret existing national laws and regulations, to determine the obligation of conduct or to fill normative gaps. For example, Justice Brian Preston of the New South Wales Land and Environment Court in the landmark judgment Gloucester Resources Limited v Minister for Planning 25

Ibid, paras 7.1–7.3.6. The most prominent case based on the Public Trust Doctrine currently is Juliana v United States of America. This case is based on action by several young plaintiffs asserting that the federal government violated their constitutional rights by causing dangerous carbon dioxide concentrations. For an overview of the case, see http://climatecasechart.com/case/juliana-v-united-states/. 27 See Summons Vereniging Milieudefensie, Stichting Greenpeace Nederland, Stichting ter bevordering van de Fossielvrij-beweging, Landelijke Vereniging tot Behoud van de Waddenzee File and others to Royal Dutch Shell plc, number 90046903, 5 April 2019, available at http://blogs2.law.columbia.edu. 26

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Introduction

referred frequently to the Paris Agreement. When upholding the refusal to consent to the Rocky Hill Coal Project, he stated: “No new fossil fuel development is consistent with meeting the Paris accord climate targets … Meeting the Paris accord climate targets means that not only must currently operating mines and gas wells be closed before their economic lifetime is completed, but also that no approved and no proposed fossil fuel projects, based on existing reserves, can be implemented … The exploitation and burning of a new fossil fuel reserve, which will increase GHG emissions, cannot assist in achieving the rapid and deep reductions in GHG emissions that are necessary in order to achieve ‘a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century’ (Article 4(1) of the Paris Agreement) or the long term temperature goal of limiting the increase in global average temperature to between 1.5ºC and 2ºC above pre-industrial levels (Article 2 of the Paris Agreement).”28 This is just one example of how international law can be used and its relevance be strengthened in judicial proceedings in national courts. 44 Another example of the increasing legal relevance of the Paris Agreement are the references made to it in other areas of international law, such as human rights law. In a recent joint statement, five UN Human Rights Treaty Bodies called upon states that “[i]n order…to comply with their human rights obligations, and to realize the objectives of the Paris Agreement, they must adopt and implement policies aimed at reducing emissions, which reflect the highest possible ambition [article 4.3], foster climate resilience and ensure that public and private investments are consistent with a pathway towards low carbon emissions and climate resilient development.29 In other words, articles 2.1 and 4.3 of the Paris Agreement together are being used to determine the substance of human rights obligations – the standard of care – with respect to climate change. 45 Similarly, in a 2019 communication to the UN Committee on the Rights of the Child, the petitioners (16 children and youths) claim that international human rights obligations are informed by the rules of international environmental law, and that the Convention on the Rights of the Child must be interpreted taking into account the respondents’ obligations under international law.30 Accordingly, they argue that the respondents (i.e. Brazil, Argentina, Germany, France and Turkey) by not reducing their emissions at the “highest possible ambition” according to article 4.3 of the Paris Agreement, have failed to comply with their human rights obligations.31 Reducing emissions at the level of highest possible ambition, they claim, implies inter alia using maximum available resources.32 This amounts to a due diligence standard for complying with human rights obligations, according to which states must take all appropriate measures to address climate change and its adverse effects, employ their best efforts or, simply, do “as well as they can”.33 28

Gloucester Resources Limited v Minister for Planning (2019) NSWLEC 7, 446–448. Committee on the Elimination of Discrimination Against Women, Committee on Economic, Social and Cultural Rights, Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, Committee on the Rights of the Child, and Committee on the Rights of Persons with Disabilities, Joint Statement on “Human Rights and Climate Change” (16 September 2019) http://https:// www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=24998&LangID=E. 30 Communication to the Committee on the Rights of the Child in the case of C. Sacchi et al. v. Argentina, Brazil, France, Germany and Turkey (23 September 2019), paragraphs 14, 174, 182. 31 Ibid 20. 32 Ibid 178. 33 Voigt, The Paris Agreement: What is the standard of conduct for parties?, Questions of International Law (24 May 2016), available at http://www.qil-qdi.org/paris-agreement-standard-conduct-parties/. 29

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Another interesting development which might have significant implications has 46 recently been made by the Inter-American Court on Human Rights (IACtHR). On 7 February 2018, the Court issued an Advisory Opinion (AO) on Environment and Human Rights which is a potentially significant decision in its series of high-profile international judicial rulings, which acknowledge legal consequences for environmental harm. In its AO on Environment and Human Rights, the Court focused on state obligations under international environmental law and human rights law in a transboundary context, in particular as concerns the construction and operation of infrastructure mega-projects, petroleum exploration and exploitation, maritime transportation of hydrocarbons, construction and enlargement of ports and shipping canals. The AO has been characterised as a landmark pronouncement in several respects.34 It 47 is the Court’s first pronouncement on state obligations concerning environmental protection under the American Charter on Human Rights (§ 46). Indeed, it is the first-ever ruling by an international human rights court that truly examines environmental law as a systemic whole, as distinct from isolated examples of environmental harm analogous to private law nuisance claims. It has been noted:35 48 “Perhaps most importantly, it is a landmark in the evolving jurisprudence on ‘diagonal’ human rights obligations, i.e. obligations capable of being invoked by individual or groups against States other than their own. The AO opens a door – albeit in a cautious and pragmatic way – to cross-border human rights claims arising from transboundary environmental impacts.” Under existing international law, it was unclear whether a state may be obliged to 49 require multinationals domiciled in its territory to adopt, at the headquarters level, policies and frameworks to ensure that subsidiaries or supply chain partners in the Global South do not infringe human rights in their places of operation. The reasoning in the AO supports such obligation at a general level. This has been done with great care in balancing between the fundamental nature of the right to a healthy environment as a necessary condition for enjoyment of human rights generally, and continuing to treat extraterritorial obligations and claims as “exceptional”. Although the IACtHR in its AO does not address climate change, some of the Court’s 50 observations on states’ duties are clearly relevant in a climate context. It was noted that the findings in the AO:36 34 Vega-Barbosa/Aboagye “Human Rights and the Protection of the Environment: The Advisory Opinion of the Inter-American Court of Human Rights” EJIL:Talk!, 26 February 2018, available at www.ejiltalk.org (accessed 24 April 2019). 35 Feria-Tinta, The Rise of Environmental Law in International Dispute Resolution: Inter-American Court of Human Rights issues Landmark Advisory Opinion on Environment and Human Rights, EJIL. Talk!, 26 February 2018, available at www.ejiltalk.org (accessed 24 April 2019). 36 Ibid. For comparison and discussion of the ICJ case and the Advisory Opinion of the IACtHR, see Desierto, Environmental Damages, Environmental Reparations, and the Right to a Healthy Environment: The ICJ Compensation Judgment in Costa Rica v Nicaragua and the IACtHR Advisory Opinion on Marine Protection for the Greater Caribbean, EJIL:Talk!, 14 February 2018, available at www.ejiltalk.org (accessed 3 June 2018). Desierto notes, critically: “The Court’s reasoning in its Judgment on compensation nowhere surveys the considerably evolved scientific landscape on short-term and long-term environmental damages assessment for complex environmental phenomena such as biodiversity, energy, air quality, and raw materials — as well as the climate change impacts that will also be felt in the affected area. This would have been a far more visionary Judgment — emulating the scientific bases for interlocking State responsibilities for prevention, remediation, and mitigation that were recognised in the IACtHR’s Advisory Opinion — had the Court at least transparently discussed the evidence before it and any use it made, if any, of the highly developed scientific resources of the international community today.”

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Introduction

“… are clearly pertinent to this ultimate example of transboundary harm. Moreover, the Court’s reasoning on the ‘jurisdiction’ issue could be used to support an argument that a State’s contribution to the accumulation of greenhouse gases in the atmosphere should result in State responsibility and accountability under the [American Convention on Human Rights] ACHR to victims living in other States, e.g. persons whose lands have become submerged or uncultivable due to rising sea levels.”

2. Addressing the consequences of climate change 51

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A second set of cases addresses the consequences or harmful effects of climate change by either establishing liability for failures to adapt to climate change, or by establishing that particular emissions are significant enough to be a proximate cause of particular adverse climate change impacts. Warming of 1.5 degrees Centigrade or more will have impacts and many of them can already be perceived: sea level rise (causing land inundation, soil salination); wilder, wetter and warmer weather, intensified droughts (causing crop failures, wild fires, fresh water dry outs), erosion, impacts on species and ecosystems etc. For this reason, adaptation to the consequences will be necessary and plans and laws on this need to be in place. Yet, not all effects can be avoided. Losses might occur due to crop failure because, for example, of droughts or damage to properties because of landslides or flash floods. The costs to governments, private actors, communities and individuals dealing with these impacts are already and will be even more significant. While none of this is new, the predicted magnitude, increased intensity, frequency and likelihood certainly are. Technical understanding of climate change and the quality of predictions about future temperature and weather patterns are improving. Recognising that adaptation efforts have not kept pace with these improvements, litigants are already bringing claims that seek to assign responsibility where failures to adapt result in foreseeable, material harms and the prospect of further litigation is rising. Building on scientific understanding of the relationship between GHG emissions and climate change, which policymakers (with notable exceptions) have generally adopted as accurate, several cases seek to establish liability for entities that generate emissions with full knowledge of those emissions’ effects on the global climate and on people and ecosystems. An interesting example is the case Lliuya v RWE AG.37 In November 2015 Saúl Luciano Lliuya, a Peruvian farmer who lives in Huaraz, Peru, filed claims for declaratory judgment and damages in a German court against RWE, Germany’s largest electricity producer. Lliuya alleged that RWE, having knowingly contributed to climate change by emitting substantial volumes of greenhouse gases, bore some measure of responsibility for the melting of mountain glaciers near his town of Huaraz, Peru. That melting has given rise to an acute threat: Palcacocha, a glacial lake located above Huaraz, has experienced a substantial volumetric increase since 1975, which has accelerated since 2003. Lliuya presented several legal theories in support of his claim, including one that characterised RWE’s emissions as a nuisance that Lliuya had incurred compensable costs to mitigate. Acknowledging that RWE was only a contributor to the emissions responsible for climate change and thus for the lake’s growth, Lliuya asked the court to order RWE to reimburse him for a portion of the costs he and the Huaraz authorities had incurred to establish flood protections. That portion was 0.47 % of the total cost – the same percentage as Lliuya’s estimate of RWE’s annual contribution to global greenhouse gas emissions. 37

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Lliuya v RWE AG Case No 2 O285/15 Essen Regional Court, on appeal.

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The court dismissed Lliuya’s requests for declaratory and injunctive relief, as well as 56 his request for damages. The court noted that it could not provide Lliuya with effective redress (Lliuya’s situation would not change, the court said, even if RWE ceased emitting), and that no “linear causal chain” could be discerned amid the complex components of the causal relationship between particular greenhouse gas emissions and particular climate change impacts. On 30 November 2017, the appeals court recognised the complaint as well-pled and 57 admissible. The case will move forward into the evidentiary phase to determine whether Lliuya’s home is (a) threatened by flooding or mudslide as a result of the recent increase in the volume of the glacial lake located nearby, and (b) how RWE’s greenhouse gas emissions contribute to that risk. The court will review expert opinion on RWE’s emissions, the contribution of those emissions to climate change, the resulting impact on the Palcaraju Glacier, and RWE’s contributory share of responsibility for causing the preceding effects. While the facts of this case must still be adjudicated, the court’s recognition that a private company could potentially be held liable for the climate change related damage of its greenhouse gas emissions marks a significant development in law. In another example, in Leghari v Federation of Pakistan, an appellate court in 58 Pakistan granted the claims of Ashgar Leghari, a Pakistani farmer, who had sued the national government for failure to carry out the National Climate Change Policy of 2012, especially when it came to adaptation action, and the Framework for Implementation of Climate Change Policy (2014–2030). On 4 September 2015 the court determined that “the delay and lethargy of the State in implementing the Framework offend the fundamental rights of the citizens”.

3. Response measures to climate change There is also a third category. The measures taken to respond to the climate crisis, 59 either on mitigation or on adaptation will also have impacts. Overly restrictive regulation might be claimed to amount to expropriation, or unequal treatment or forfeiture of legitimate expectations or loss of revenue, especially by carbon or energy-intensive companies. One example is the claim brought by Vattenfall, a Swedish energy firm, in 2009. 60 Vattenfall launched its investor-state claim against Germany, arguing that new environmental regulation amounted to an expropriation and a violation of the obligation to afford foreign investors “fair and equitable treatment” and claimed $1.9 billion under the Energy Charter Treaty. Vattenfall’s claim concerned permit delays for a coal-fired power plant in Hamburg.38 61 After the company litigated in domestic courts, the coalition government issued the permits, but with additional requirements to protect the Elbe River. Rather than comply with these requirements, Vattenfall launched its investor-state compensation claim against Germany. To avoid the uncertainty of a prospective investor-state tribunal ruling ordering payment of a massive amount of compensation, the German government reached a settlement with Vattenfall in 2010.39 The settlement obliged the Hamburg government to drop its additional environmental requirements and issue the contested permits required for the plant to proceed.40

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See the request for arbitration at www.italaw.com. Agreement between Vattenfall and the Federal Republic of Germany can be accessed at www.italaw.com. 40 Vattenfall AB v Federal Republic of Germany ICSID Case No ARB/12/12. 39

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Meanwhile, the German Constitutional Court found that Germany’s law to exit nuclear power did not amount to an unconstitutional expropriation, as claimed by several nuclear power companies.41 63 Under these and other scenarios, there might be a turn to courts in seeking to address the economic and social side effects of regulation – for example, workers that get laid off due to the closure of a carbon or energy intensive installation, or environmental side effects, for example, birds that get killed by wind turbines. These cases might involve a difficult balancing of various objectives and can lead to sensitive legal and political decisions. As with the example of Vattenfall and Germany, the threat of massive compensation claims might exert enough political and economic chill to influence legislators and decision-makers. 64 In this situation, it is to be expected that courts will be forced to take legal decisions with political implications. A development of more active European courts would mirror to a larger extent the action by American courts. 62

IV. Major legal issues There are several main legal issues that tend to be disputed among the parties involved in climate change litigation. Interestingly, climate cases hold a number of particular challenges that are not (all) present in other areas of law. 66 First, the main objective of a climate claim may be to prevent, rather than seek redress for, environmental harm. Avoiding harm from occurring, however, might apply only within a small window of time. Consequently, environmental cases might be more time sensitive than other cases; a situation that sits uneasily with the slow-motion nature of national, and in particular international adjudication. 67 Second, there are difficulties in quantifying environmental harm once it has occurred. In general, courts have recognised material and moral damage, including environmental damage, as long as it is financially assessable. For a long time, however, the question of whether courts would support the idea that environmental damage also encompasses damage to the intrinsic value of the environment, beyond resources of a direct economic value, remained an open one. Only recently has the ICJ started to evaluate environmental harm in Certain Activities Carried Out by Nicaragua in the Border Area (2018).42 However, the final amount of compensation assessed against Nicaragua fell significantly short of what Costa Rica had demanded. The case is nonetheless an important precedent for recognising conservation interests and ecosystem services; yet the question of how to quantify environmental harm is still far from settled. 68 Third, environmental cases rely on scientific evidence of causality and effects: for example, which pollutants have which effects on the ecosystem, animal or plant life or health. The science can be complex or unsettled. There might be uncertainties and loopholes. In addition, there could be challenges in securing scientific experts who are willing to speak against vested commercial interests. Also, in most cases judges are trained in law and are not experts in natural sciences. There is a need to translate complex technical data into a language that is accessible to judges. The challenge with respect to climate change is accumulated emissions (over a long time and by many emitters). Here the question is whether science and legal theory and practice are able to 65

41 Bundesverfassungsgericht, judgment of 6 December 2016, 1 BvR 2821/11 1 BvR 321/12 1 BvR 1456/12, available at www.italaw.com. 42 Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v Nicaragua) Compensation Owed by the Republic of Nicaragua to the Republic of Costa Rica (2018), available at www.icj-cij.org.

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develop approaches that can deal with this kind of challenge. Environmental judicial practice provides some examples of how this has been done and which challenges exist. One suggestion could be to establish causation on the sole basis of contribution to the problem of climate change from a specific actor.43 It could also be argued that significant emitters of GHGs have knowingly increased the risk of damage by contributing to increased concentrations of GHGs in the atmosphere – or that any such contribution amounts to a violation of due diligence/duty of care.44 Fourth, there is the issue of justiciability, that is, the question of the plaintiff’s standing, legal interests and the court’s role relative to that of the government’s other branches: For example, the separation of powers principle was addressed by The Hague District Court in the Urgenda case. The court found that Dutch law actually requires the judiciary to assess the actions of political bodies when the rights of citizens are at stake, even if the resolution of the case has political outcomes. The court explained that Urgenda’s claim “essentially concerns legal protection [of rights]”. Fifth, there is the question of sources of climate obligations and the standard of care. Climate change litigation can draw on various sources of legal authority, including constitutional provisions (in particular a right to a clean and healthy environment), statutory law (for example, Endangered Species Act, Environmental Impact Assessment), common law (tort, nuisance, negligence), or others (duty of care, Public Trust Doctrine). They may also draw on international law (for example, human rights law, the United Nations Framework Convention on Climate Change and the Paris Agreement). In some cases, plaintiffs identify more than one of these, or a combination of them, as providing the legal basis for their claims. The standard of care entailed in the obligations, once identified, is another question. For example, with the Paris Agreement the question is what exactly Parties are required to do in terms of addressing the climate challenge. Many claim that the Paris Agreement takes a “bottom up” approach. However, this is not entirely the case. While the national climate contributions (called: nationally determined contributions) are self-determined by governments, the agreement is not silent on what and how much needs to be done. A “direction of travel” is provided by the goals of holding global temperature increases to well below 2 degrees Centigrade and pursuing action to limit it to 1.5 degrees as expressed in art 2.1(a) of the Agreement. This is an important guidance which not only has informed national actions worldwide, but has (together with the goal of “carbon neutrality by the middle of this century” (art 4.1)) in many cases been reflected and incorporated into national laws. Importantly, the Agreement is not entirely a “bottom up” instrument also because it sets out normative parameters which provide for an international “pull” and which determine the legal standard of care now to be exercised in climate affairs. Those parameters are not legally binding per se, but nevertheless exert normative force. One, as already mentioned above, is the duty of care – as a standard of conduct – that is expressed in the requirement that each Party’s NDC will reflect its highest possible ambition (Paris Agreement, art 4.3), in a manner that reflects its responsibilities and respective capabilities. This provision expresses the legal expectation that Parties will deploy their best efforts in setting their national mitigation targets and in pursuing domestic measures to achieve them. This sets for each Party the standard of conduct to

43 Verheyen, Climate Damage and International Law: Prevention Duties and State Responsibilities, Martinus Nijhoff, 2005. 44 Voigt, in: Carlarne/Grey/Tarasofsky (eds.) Oxford Handbook of International Climate Change Law, Oxford University Press, 2016, 464–494.

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do as well as it can, to deploy adequate means, to do its utmost. In this lies an important aspect of global climate justice; an aspect which has yet to be recognised and utilised. This is a due diligence standard, well known in international and national law, which requires each government to take all adequate and appropriate measures at its disposal.45 It means, at the minimum, that Parties need to set their highest possible mitigation target at a level that is not economically disproportionately burdensome or impossible to achieve. It also requires Parties to have domestic measures in place that are necessary, meaningful and, indeed, effective means to achieve that target.46 Such a target should be comprehensive and based on a thorough assessment of mitigation options in all relevant sectors. Parties would need to deploy all political, legal, socio-economic, financial and institutional capacities and possibilities in defining such target, implementing it through adequate laws and regulations and enforcing it. Moreover, Parties would need to plan their climate strategies holistically and within a long-term timeframe.47 Acting with due diligence requires of a government to act in such a way or to use such care that governments in the same situation may reasonably be expected to exert in matters of international interest and obligation. It also implies that governments act in proportion to the risk to which they might be exposed:48 “The required degree of care is proportional to the degree of hazard involved. … The higher the degree of inadmissible harm, the greater would be the duty of care required to prevent it.”49 As has been noted, the standard of due diligence requires “nothing more nor less than the reasonable measures which a well-administered government could be expected to adopt under similar circumstances”.50 This is an “objective” assessment criterion. It has however been rejected by several scholars, and arbitrators, which have instead relied on the “subjective due diligence standard”, taking into consideration the means at the disposal of the state, and the specific circumstances present in the state.51 Arguably, these two elements are not so easily separated. The standard is primarily an objective one. However, both for the assessment of “reasonableness” and for the determination of “similar circumstances”, Parties’ specific circumstances would need to be taken into account. In other words, each successive NDC has to contain a Party’s highest level of ambition – it must do as well as it can in order to progressively achieve the objective of the agreement, that is, keep the increase in global temperature well below 2 degrees Centigrade and pursue efforts to limit such increase to 1.5 degrees Centigrade. Moreover, a Party’s changing circumstances (for example, a financial or economic crisis) cannot be used as a legal excuse for reducing its “highest possible ambition” compared to the level contained in the previous NDC. In order to avoid a decrease in ambition level, the progression principle in art 4.3 has a significant role to play. It not only sets a “floor” for the next NDC, but requires each Party to go above and beyond each previous NDC. The impact of “progression” can be likened to the non-regression principle known in human rights law. There it requires that norms which have already been 45 Voigt/Ferreira ‘Dynamic Differentiation’: The Principles of CBDR-RC, Progression and Highest Possible Ambition in the Paris Agreement, (2016) 5(2) Transnational Environmental Law 285–303. 46 Ibid. 47 This expectation is also covered in art 4.19, according to which Parties should strive to formulate and communicate long-term low greenhouse gas emissions development strategies. 48 See, for example, the first report of the ILA Study Group on Due Diligence in International Law, 7 March 2014, www.ila-hq.org. 49 Crawford, Commentary on Draft Articles on State Responsibility, Oxford University Press, 1999, at 18. 50 Freeman, Responsibility of States for Unlawful Acts of their Armed Forces, (1955-II) 88 Recueil des Cours de l’Academie de Droit International de la Haye 263 at 277–278. 51 Newcombe/Paradell, Law and Practice of Investment Treaties: Standards of Treatment, (2009), at 310, 6.44. See also Koivurova, Due Diligence, in: Max Planck Encyclopedia of Public International Law, Oxford University Press, 2013.

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adopted by states cannot be revised, if this implies backtracking on the standard of protection of collective or individual rights. However, the principle of progression in the Paris Agreement is stronger than that: it implies increasing the level of ambition – not just keeping it at the same level! It is the combination of both legal elements – progression and highest possible 78 ambition – that determines the duty of care to be expressed in Parties’ nationally determined contributions: “Highest possible ambition” means to act with the level of care that can be expected from a good government in similar circumstances (“the best in class”) when aiming to match ambition with the overall temperature goal of the Paris Agreement, and “progression” to ensure that Parties do not only not divert from earlier ambition levels, but continue to increase such levels for every successive NDC. Sixth, bringing a claim before a court also involves issues around cost and time. 79 Affected individuals or communities may not have access to the resources usually available to corporate culprits or state actors, raising the question of access to justice. These are only some of the circumstances that make the study of judicial environ- 80 mental practice relevant. In order to grasp judicial practice on the environment, however, it is necessary to investigate the many various ways and means by which different courts and quasi-judicial bodies could deal and already address climate claims. This necessitates the study of different national, regional and international courts and tribunals, as well as a large variety of cases and claims. By learning from each other, courts can establish a global discourse “language” and influence – and, eventually a cross-fertilisation of legal arguments and reasoning which may help to overcome barriers and make the judiciary fit for purpose.

V. Potential role for litigation in national courts As mentioned above, the twin principles of “highest possible ambition” and “progres- 81 sion” could be used as a legal standard for assessing the adequacy of government action. Such standard of care has been shown to comprise an element of proportionality, including an equitable balancing of interests. Although a heavy burden of proof is placed on the plaintiff which has to establish a failure to act with due diligence by a state, this is not impossible. It was in this similar vein that the Hague District Court in the Urgenda case found 82 that the State of the Netherlands had violated its duty of care – a standard analogous to the due diligence standard in international law – by defining an insufficient climate mitigation target. By finding that a mitigation target of 25 % and higher (as compared to the initial target of 20 %) would not be economically disproportionately burdensome or impossible for the Netherlands, the Court concluded that by adopting a mitigation target below the range of 25–40 %, the state had failed to fulfil its duty of care, acted negligently and therefore unlawfully.52 In another example, the plaintiffs in Greenpeace v Norway also attempted to rely on 83 this provision to “fill in context” to the constitutional provision that “everybody has a right to an environment that is conducive to health” and that natural resources shall be managed based on long-term considerations and rights for future generations. Here, the Oslo District Court and the Court of Appeal denied that there was a violation of a 52 Urgenda Foundation and 886 citizens v State of the Netherlands [2015] C/09/456689/HA ZA 13–1396. An English translation of the decision is available at http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2015:7196, paras 4.52–4.93, in particular para. 4.86.

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constitutional provision. The decision is currently under appeal to be decided by the Supreme Court in late 2020. To sum up, these legal standards could be used to shape and interpret domestic laws and policies and to measure whether the appropriate care was applied. They can and should be used to shape and interpret domestic laws and policies in the context of climate justice. Moreover, national (and international) courts can and should play an important complementary role by using these parameters as supporting legal arguments or as a tool for statutory interpretation. They can even be used as a standard of review; a legal standard for assessing the adequacy of national laws and policies. The cases mentioned above are examples of a “turn to courts”, in as much as they are a challenge and chance for courts – and judges – to define, redefine or strengthen their role in the national and global international order in the global, urgent, and most important fight against dangerous climate change. The cases mentioned in this article are not exhaustive. They are only examples of a long and wide list of climate litigation. We have not seen the end of it; perhaps just the beginning. There are several reasons for this expectation. First, there is the growing urgency of addressing climate change as well as the fact that as impacts become more severe and frequent, this suggests more climate-related litigation to come. It is a complex, super-wicked problem and requires “all hands on deck”, including all branches of government, to protect citizens’ and nature’s rights. Second, many states are in the process of enacting more climate and energy related laws and regulation, a fact that might pave the way to more litigation. Third, the Paris Agreement and its rulebook only now (since 2018) are in place. The Paris Agreement puts national laws and policies into a global context and thereby enables litigants to construe governments’ commitments and actions as being adequate or inadequate. Fourth, there is already a “rising tide” of climate litigation – across different jurisdictions. This could lead to “cross-fertilisation” and legal globalisation where courts might refer to each other, across state borders and jurisdictions. Judges talk to each other and watch legal developments in other countries and jurisdictions very carefully; learning from and being inspired by legal reasoning in other cases. One example is the February 2019 case of Gloucester Resources Ltd v Minister for Planning.53 In this case, the coal mining company Gloucester Resources Ltd had sued the Minister of Planning, appealing the denial of the company’s application to construct an open cut coal mine in New South Wales (the Rocky Hill Coal Project), which proposed to produce 21 million tonnes of coal over a period of 16 years. The Land and Environment Court of New South Wales upheld the government’s denial of the application. It found that the project was not in the public interest after weighing the costs and benefits of the project, including the climate change impacts of the mine’s direct and indirect greenhouse gas emissions. In particular, Judge Preston referred to the arguments of the Urgenda case by the Hague Court of Appeal in rejecting the defence by the coal company that its emissions are minimal, that it cannot solve the problem on its own, and that the worldwide community has to cooperate. Rather, referring to The Hague case, the judge found a causal relationship between emissions and climate change. He argued that the emissions contribute to the problem and do not release the company from its obligation to take measures, within its capabilities, which in concert with the efforts of others provide protection from the hazards of dangerous climate change.54 53 Gloucester Resources Ltd v Minister for Planning, Land and Environment Court New South Wales, 8 February 2019, NSWLEC 7. 54 Judgment, Gloucester Resources Ltd v Minister for Planning, Land and Environment Court New South Wales, 8 February 2019, NSWLEC 7, 521–524.

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Fifth, the issue of climate refugees – new and not regulated in international and national law – is expected to lead to more claims and cases in national courts, as already experienced by, for example, New Zealand. Sixth, there might be more climate litigation in the Global South, with perhaps different results. Current trends suggest that litigation around climate impacts might increase in those areas where the impacts are most directly felt, in particular in vulnerable and exposed areas of the Global South. Seventh, there are many more legal issues to come, which have not been addressed in current cases – or only to a minimal extent – such as the fiduciary duties of company officers and pensions fund managers, cases seeking to ban state aid to fossil fuel (intensive) companies, and cases seeking determination of liability of a company or other entity for climate change damages. There is a key role for the judiciary and for individual judges in the battle to save the climate system from catastrophe. District Judge Ann Aiken in the Juliana case (United States) aptly captured this when she recognized: “This action is of a different order than the typical environmental case … It alleges that the defendant’s action and inactions … have so profoundly damaged the home planet that they threaten [the] plaintiffs’ fundamental constitutional rights to life and liberty.” She continued: “No doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society … a stable climate system is quite literally the foundation of society, without which there would be neither civilisation nor progress”.55 Many of the judgments that have recently been released give legal reasoning (as well as political inspiration) for more effective climate action. Courts cannot solve the problem alone, but they can be an important “correction” to failing action by governments and companies. 55 Order by US District Court, District of Oregon in Juliana v United States of America, Case Number: 6:15-cv-01517-TC, 14 June 2018, available at http://blogs2.law.columbia.edu.

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PART 1 FUNDAMENTAL QUESTIONS A. Liability for climate damages, sustainability and environmental justice Bibliography: Appel, Staatliche Zukunfts- und Entwicklungsvorsorge. Zum Wandel der Dogmatik des öffentlichen Rechts am Beispiel des Konzepts der nachhaltigen Entwicklung im Umweltrecht, Mohr Siebeck 2005; Aust, Das Recht der globalen Stadt. Grenzüberschreitende Dimensionen kommunaler Selbstverwaltung, Mohr Siebeck 2017; Ayers, Sustainability. An Environmental Science Perspective, CRC Press 2017; Beck, World Risk Society, Polity Press 1999; Burgi, Rechtsregime, in: Hoffmann-Riem/Schmidt-Aßmann/ Voßkuhle (eds.), Grundlagen des Verwaltungsrechts, 2nd ed., Beck 2012, § 18; Busby, Ralph Ellison, in: Western Literature Association (ed.), Updating the Literary West, Texas Christian University Press 1997, p. 520; Caney, Climate change and the duties of the advantaged, 13 Critical Review of International Social and Political Philosophy 203 (2010); von Carlowitz, Sylvicultura oeconomica. Oder haußwirthliche Nachricht und Naturmäßige Anweisung zur wilden Baum-Zucht, Braun 1713; Chatzinerantzis/Appel, Haftung für den Klimawandel, 72 Neue Juristische Wochenschrift 881 (2019); Crutzen, Geology of Mankind, 415 Nature 23 (2002); de Man, Reading (Proust), in: Allegories of Reading. Figural Language in Rousseau, Nietzsche, Rilke, and Proust, Yale University Press 1979, p. 57; Easterling, Extrastatecraft. The Power of Infrastructure Space, Verso 2014; Frank, Klimawandel – (auch) juristisch keine Blackbox, 37 Neue Zeitschrift für Verwaltungsrecht 960 (2018); Gardiner, A Perfect Moral Storm. The Ethical Tragedy of Climate Change, Oxford University Press 2011; Gosseries, Historical Emissions and Free‐ Riding, 11 Ethical perspectives, 36 (2004); Hahn, Umwelt- und zukunftsverträgliche Entscheidungsfindung des Staates, Mohr Siebeck 2017; Intergovernmental Panel on Climate Change, Climate Change 2014: Synthesis Report, IPCC 2014; Kahl, Einleitung: Nachhaltigkeit durch Organisation und Verfahren, in: Kahl (ed.), Nachhaltigkeit durch Organisation und Verfahren, Mohr Siebeck 2016, p. 1; Kahl, Nachhaltigkeitsverfassung. Reformüberlegungen, Mohr Siebeck 2018; Kemper, Politische Legitimität und politischer Raum im Wandel. Eine historisch-systematische Studie zu einem Kontextverhältnis, Springer VS 2015; Kersten, Das Anthropozän-Konzept. Kontrakt – Komposition – Konflikt, 5 Zeitschrift für rechtswissenschaftliche Forschung 378 (2014); Kloepfer, Langzeitverantwortung im Umweltstaat, in: Gethmann/ Kloepfer/Nutzinger (eds.), Langzeitverantwortung im Umweltstaat, Economica 1993, p. 22; Kloepfer, Umweltgerechtigkeit. Environmental Justice in der deutschen Rechtsordnung, Duncker & Humblot 2006; Kloepfer, Umweltrecht, 4th ed., Beck 2016; Kloepfer, Respekt im Gemeinwesen und im Recht, 110 Verwaltungsarchiv 419 (2019); Latour, Politiques de la nature. Comment faire entrer les sciences en démocratie, Éd. la Découverte 1999; Low/Gleeson, Justice, Society and Nature. An Exploration of Political Ecology, Routledge 1998; McGrath, Thinking Nature. An Essay in Negative Ecology, Edinburgh University Press 2019; Merchant, Earthcare. Women and The Environment, Routledge 1996; Meyer, Compensating Wrongless Historical Emissions of Greenhouse Gases, 11 Ethical Perspectives 20 (2004); Morton, The Ecological Thought, Harvard University Press 2010; Morton, Ecology without the Present, 34 Oxford Literary Review 229 (2012); Morton, Hyperobjects. Philosophy and Ecology after the End of the World, University of Minnesota Press 2013; Morton, Realist Magic. Objects, Ontology, Causality, Open Humanities Press 2013; Morton, Dark Ecology. For a Logic of Future Coexistence, Columbia University Press 2016; Neugärtner, “New Directions in Law and Literature” – Transatlantische Betrachtungen, 8 Zeitschrift für rechtswissenschaftliche Forschung 461 (2017); Neugärtner, Untern Fliesen liegt der Strand. Plastikmüllrichtlinienentwurf (Triptychon), 34 myops. Berichte aus der Welt des Rechts 4 (2018); Osofsky, The Intersection of Scale, Science, and Law in Massachusetts v. EPA, in: Burns/Osofsky (eds.), Adjudicating Climate Change. State, National, and International Approaches, Cambridge University Press 2009, p. 129; Ostrom, A Polycentric Approach for Coping With Climate Change, The World Bank 2009; Salzman/Thompson, Environmental Law and Policy, 4th ed., Foundation Press 2014; Singer, Animal Liberation, Avon Books 1975; Sloterdijk, Sphären III. Schäume, Suhrkamp 2004; Smale et al., Marine heatwaves threaten global biodiversity and the provision of ecosystem services, 9 Nature Climate Change 306 (2019); Spitzer/Burtscher, Liability for Climate Change: Cases, Challenges and Concepts, 8 Journal of European Tort Law 137 (2017); Steffen/Grinevald/Crutzen/McNeill, The Anthropocene: conceptual and historical perspectives, 369 Philosophical Transactions of the Royal Society 842 (2011); Thiele, Sustainability, 2nd ed., Polity Press 2016; Trexler, Mediating Climate Change. Ecocriticism, Science Studies, and The Hungry Tide, in: Gerrard (ed.), The Oxford Handbook of Ecocriticism, Oxford University

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Part 1. Fundamental questions Press 2014, p. 205; United Nations, Report of the World Commission on Environment and Development, Our Common Future, 1987; Wackernagel/Rees, Our Ecological Footprint. Reducing Human Impact on the Earth, New Society Publishers 1996; Walker, Environmental Justice. Concepts, evidence and politics, Routledge 2012; Winter, Armando Carvalho et alii versus Europäische Union: Rechtsdogmatische und staatstheoretische Probleme einer Klimaklage vor dem Europäischen Gericht, 30 Zeitschrift für Umweltrecht 259 (2019); Zenner, Laudato Si’ and Standing Rock: Water Justice and Indigenous Ecological Knowledge, in: Deane-Drummond/Artinian-Kaiser (eds.), Theology and Ecology across the Disciplines: On Care for Our Common Home, T&T Clark, 2018, p. 179.

Contents I. Introduction: global warming’s spatiotemporal strangeness – “tricky” to imagine.......................................................................................... II. Random sampling: Lliuya v. RWE – approaching liabilities for climate damages inductively......................................................................... 1. The case Lliuya v. RWE ............................................................................ 2. Three exemplary issues: statute of limitations, rivalling Rechtsregime, adequate causation ........................................................... 3. Trying to imagine “strange” ‘spaces’, ‘times’ and ‘agents’................. III. Key frameworks: ‘sustainability’, ‘environmental justice’ – and ‘ecological justice’............................................................................................ 1. Integrative frameworks for “evaluating environmental decisions” . 2. First encounters, some basic definitions, some common(?) ground a) ‘Sustainability’ – integrating future interests .................................. b) ‘Environmental justice’ – integrating the interests of people worse ‘situated’....................................................................................... 3. Some traps: ‘lucid dreams’ of harmony, ‘greenwashing’ and anthropocentrist blind spots .................................................................... 4. ‘Ecological justice’ – ‘space’, ‘time’ and ‘agency’ in the Anthropocene .............................................................................................. a) Ecophilosophical pluralism ................................................................. b) Anthropocenic culture of conflicts.................................................... IV. Times, spaces (and agents) of global warming ........................................ 1. Times of global warming .......................................................................... a) The present: protecting the status quo, myopic distributive justice, “agrilogistical” ‘presence’ ....................................................... b) The past: Neolithic and Industrial Revolution traumas, historical wrongs, reparative justice.................................................. c) The future: limited tort law doctrines, long-term responsibilities, suing public agents, post-sustainability: resilience and dynamic coping........................................................... 2. Spaces of global warming ......................................................................... a) Geographic and ecological spaces: coal basins, glaciers, the Norwegian Bourgogne – and the upper atmosphere; nonhuman agents......................................................................................... b) Economic, social, ‘cultural’ and ‘identity’ spaces: ‘skewed’ paraenvironmental justice ........................................................................... c) Political and legal spaces I: nation-states – insufficient, but still essential ................................................................................................... d) Political and legal spaces II: polycentrism, (g)local communities, federalism and supra-nationalism........................... e) Political and legal spaces III: pluralist globalism(s): UNFCCC, IPCC, “extrastatecraft”, international NGOs, conflict of laws.... V. Coda: “more time tunnels of different sizes” ...........................................

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A. Liability for climate damages, sustainability and environmental justice

“Let’s have more time tunnels of different sizes.” Timothy Morton1

I. Introduction: global warming’s spatiotemporal strangeness – “tricky” to imagine “Imagining climate change is an enormously difficult task.”2 It is impossible for (human) 1 beings to see or experience ‘global warming’ as such. Of course, humans across the globe already have to cope with the consequences of climate change such as droughts, floods and storms on a daily basis. However, although severe and possibly lethal in (masses of) single cases, these (many) individual experiences are only minute pieces of global warming as a whole. Climate change has vast expansions – viewed temporally, spatially as well as with respect to questions of ‘agency’. Greenhouse gases (GHGs) emitted by a coal-fired power plant in Europe may contribute to climate damages in glacial regions in the South American Andes (infra mns 3, 8, 43). The last centuries’ decisions to exploit fossil energy sources have created paths and dependencies which affect ‘our’ enormous contributions to global warming today and in the coming decades, if not in the coming centuries (infra mn. 35). Global warming strangely relates places around the globe, bridges time spans of centuries and involves a multiplicity of (human) actions. The literary scholar and philosopher Timothy Morton characterises global warming as a “hyperobject”: It “cannot be directly seen, but it can be thought”, however, “thinking [it] is intrinsically tricky.”3 The “tricky” and “enormously difficult task” of imagining ‘global warming’ not only 2 challenges ‘our’ cultural imagination and philosophical discourses, it also pushes ‘our’ political thinking and legal imagination4 to their limits. The present article will inquire into some of the difficulties in ‘our’, i.e., especially the European and North American, political and legal thinking about liabilities for climate damages. In doing so, it will revisit some basic frameworks for evaluating local as well as global environmental policy and law. The article focuses on the two somewhat established, though conceptually pluralistic and contested, frameworks of ‘sustainability’ and ‘environmental justice’ – supplemented by the notion of ‘ecological justice’ (infra mns 11 et seq.). Given their awareness of spatiotemporal as well as ‘agency’-related structures, these three frameworks promise some guidance for our inquiry about the times (infra mns 32 et seq.) and spaces (infra mns 43 et seq.) of global warming from the perspectives of environmental policy and law.

II. Random sampling: Lliuya v. RWE – approaching liabilities for climate damages inductively 1. The case Lliuya v. RWE In order to dive into global warming’s spatiotemporal vastness, the article is turning 3 to the case Lliuya v. RWE as an illustrative, though particularly extraordinary example for climate damages litigation. In Lliuya v. RWE, also known as the Huaraz case, the Peruvian farmer Saúl Luciano Lliuya is suing the energy utilities company RWE in German courts. Lliuya owns land near the Peruvian city Huaraz in the Andes region. 1

Morton, Dark Ecology, 2016, 113. Trexler, in: Gerrard (ed.), The Oxford Handbook of Ecocriticism, 2014, 205. 3 Morton, Hyperobjects, 2013, 3 et seq., 103. 4 Cf Kersten, Rechtswissenschaft 2014, 378 (410). 2

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Part 1. Fundamental questions

According to Lliuya, for decades, GHG emissions from RWE’s power plants have contributed to anthropogenic global warming, which, in turn, has facilitated the melting of an Andes glacier (Palcaraju) near Huaraz. The glacier’s melt waters flow into Lake Palcacocha situated above Huaraz. According to the plaintiff, given the lake’s rising water level, there is a serious threat that his land will get flooded. Therefore, Lliuya is demanding from RWE partial reimbursement of costs for protective measures directed against the potential flooding (namely “sustainable” drainage of the lake in order to reduce its water level). The demanded partial reimbursement is calculated in proportion to RWE’s share in global GHG emissions, which, according to Lliuya, amounts to 0.47 % of global total emissions from 1751 to 2010. 4 In 2015, Lliuya brought a property rights action based on German private law against RWE in the Regional Court LG Essen (civil jurisdiction). Germanwatch e. V., a nonprofit NGO (infra mns 47, 58) based in Germany, is supporting the action. The LG Essen dismissed the action in 2016, partly on justiciability grounds, partly on the merits.5 However, on appeal, the Higher Regional Court OLG Hamm preliminarily approved the justiciability and soundness of Lliuya’s action and ordered the hearing of evidence.6 At the turn of the decade, the litigation is pending.

2. Three exemplary issues: statute of limitations, rivalling Rechtsregime, adequate causation The case Lliuya v. RWE illustrates the spatiotemporal and ‘agency’-related strangeness inherent in climate ‘damages’ litigation (with ‘damages’ conceived broadly). Lliuya bases his claim on property law as codified in the German Civil Code Bürgerliches Gesetzbuch (BGB) in § 1004 Abs. 1 BGB, which is partly functionally equivalent to the doctrine of (private) nuisance (and not directed at compensation for damages in a narrow sense). The claim involves several contested legal issues. Three issues – one mainly temporal aspect, one mainly ‘agency’-related aspect and one spatiotemporal as well as agency-related aspect – shall be pointed out exemplarily: 6 First, regarding the action’s temporal dimension, Lliuya’s claim could be barred by the statute of limitations (Verjährung; cf §§ 194 et seq. BGB) since it is based on emissions that partially reach back into the past for several decades (infra mn. 36). However, on the other hand, it is possible to focus on the perpetual continuity of RWE’s power plants’ emissions (and the continuous lack of protective measures against the emissions’ harmful effects) and, thus, deny the applicability of the statute of limitations.7 More fundamentally, given global warming’s temporal vastness, some forms of climate damages litigation might face rule-oflaw concerns, for instance questions of (forbidden) retroactive effects (infra mn. 38). 7 Second, Lliuya v. RWE implicates some difficulties regarding the notion of ‘agency’ (in a broad sense), which is concerned with the capacity of autonomous entities (‘agents’) to act (infra mns 27 et seq., 30). One ‘agency’-related issue in Lliuya v. RWE involves the intricate interplay of private law and public law. Private law, e.g. torts and property law (like § 1004 Abs. 1 BGB), and public law, i.e. statutory administrative law, are separate but still somehow interdependent bodies or “regimes of law” (“Rechtsregime”8 – infra mns 40, 54). In Lliuya v. RWE, RWE’s emissions have been 5

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LG Essen, Judgement of 15.12.2016, 2 O 285, NVwZ 2017, 734. OLG Hamm, Decision of 30.11.2017, I-5 U 15/17, ZUR 2018, 118; OLG Hamm, Decision of 23.08.2018 (partly amending the former order). 7 Cf OLG Hamm, Decision of 30.11.2017, I-5 U 15/17, ZUR 2018, 118. 8 Burgi, in: Hoffmann-Riem/Schmidt-Aßmann/Voßkuhle (eds.), Grundlagen des Verwaltungsrechts, 2nd ed., 2012, § 18; Kloepfer, Umweltrecht, 4th ed., 2016, § 6, mn. 17 et seq. 6

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‘legal’ under German and European Union public law, i.e. clean air legislation and ‘climate protection’ legislation (under the German Bundes-Immissionsschutzgesetz and Treibhausgas-Emissionshandelsgesetz). One might argue that conduct which is in compliance with statutory mandates and, thus, legal under the “regime” of public law cannot be the basis for property rights liabilities under the “regime” of private law.9 (However, as the OLG Hamm has pointed out, this is not the only way in which the two “regimes of law” could be reconciled.10) Be this as it may, the tensions between public law and private law touch a more fundamental point: One might argue that public law ‘legalisation’ of RWE’s GHG emissions should be viewed as some ‘shift’ of ‘agency’ and ‘responsibility’. By ‘legalising’ the emissions, the EU and Germany as political communities could have taken final(?) responsibility for the emissions and their detrimental effects. Isn’t an effective and reliable energy supply one of the most important contributions to the German (and European) common good and public welfare?11 Might the EU and Germany as the political and socio-economical units advantaged by RWE’s operation of power plants be the relevant and primarily(?) responsible actors here? This brings up questions about the political, legal and moral ‘agency’ of political units such as nation-states and supra-national organisations (infra mns 49 et seq.), but also of socio-economical units (infra mns 45 et seq.). Remarkably, a somehow parallel shift (or supplement) of agency might be at play on the other side of the globe as well: Peru as a political and socio-economical unit might have a prior (?) responsibility to protect its citizen Lliuya – opening up questions of ‘resilience’ and adaption (infra mn. 42). Of course, these different aspects and tiers of agency and responsibility are not necessarily mutually exclusive. However, they complicate the overall picture. They point to possible other (alternative or additional) climate damages actions, particularly actions from or against political units such as Peru, Germany or the EU (infra mns 50, 55). Furthermore, they raise separation-of-powers issues, especially with regard to the relations between courts and legislation (infra § 3). Third and possibly most controversially, there is the spatiotemporal – and perhaps 8 also ‘agency’-related – issue of ‘causation’. Is it possible to establish a causal chain between RWE’s power plants’ emissions in Europe and the potential flooding of Lliuya’s land by glacial melt waters in the Andes? (The distance between Essen, North RhineWestphalia, Germany, and Huaraz, Peru, being more than 10,000 kilometres.) It has to be emphasised that, with regard to causation issues, GHG emissions and their contribution to global warming are extraordinary (‘strange’): GHGs differ from more familiar, ‘traditional’ air pollutants such as SO2, the main factor in the formation of acid rain and the notorious Waldsterben. Whereas every single SO2 molecule’s contribution to specific effects of Waldsterben – at least theoretically – can be traced spatiotemporally on its way from the point of emission to the point of the injury, GHG emissions around the globe diffuse in the upper atmosphere and form an overarching layer of “well-mixed greenhouse gases” facilitating the greenhouse effect around the globe.12 Be this as it may, from the standpoint of legal doctrine, there is the further question whether the causation issue should ‘simply’ be a question to be answered by the natural sciences, or how much room should be opened up for normative filtering and assessment operations led by legal causation doctrines such as the normative requirement of ‘adequate causation’. For instance, should it matter for approving ‘adequate causation’ 9

Cf Chatzinerantzis/Appel, NJW 2019, 881 (885). Cf OLG Hamm, Decision of 30.11.2017, I-5 U 15/17, ZUR 2018, 118, pointing to the general principle underlying norms such as § 906 Abs. 2 S. 2 BGB and § 14 S. 2 BImSchG. 11 Cf Chatzinerantzis/Appel, NJW 2019, 881 (885). 12 Cf Frank, NVwZ 2018, 960 (961), citing IPCC, Climate Change 2014: Synthesis Report, 2014. 10

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whether it was foreseeable for RWE that their emissions would lead to climate damages such as the potential damages in Huaraz? Were climate damages foreseeable before the 1970s? If ‘we’ treat foreseeability as a prerequisite of ‘(adequate) causation’, it becomes obvious that ‘causation’ doctrines are not only about ‘space’ and ‘time’, but involve (normative) ‘agency’-related considerations, too.

3. Trying to imagine “strange” ‘spaces’, ‘times’ and ‘agents’ The foregoing outline of three typical issues in climate damages litigation in the case Lliuya v. RWE was not meant to provide definitive solutions to these problems but rather to illustrate the range of “strangeness” (or “weirdness”13 or unfamiliarity or extraordinariness) involved. When we call these aspects “strange”, we – emphatically – do not intend to answer the questions raised above in the negative. For instance, we do not say that the causation requirement should be constructed narrowly and, thus, be negated in Lliuya v. RWE. The present article does not provide doctrinal legal scholarship. Rather, the article is interested in investigating possible reasons for why ‘we’ might find strangeness in climate damages litigation – and whether ‘we’ might get attuned to this strangeness. 10 The case Lliuya v. RWE has already raised some awareness of the spatiotemporal and agency-related difficulties of global warming. Before the article will turn to the temporal and spatial dimensions in detail (infra mns 31 et seq.), the key frameworks of ‘sustainability’, ‘environmental justice’ and ‘ecological justice’ are introduced (infra mns 11 et seq.) as reference points for the subsequent discussion. However, there is going to be some “necessarily iterative, circling style of thought [… in the following passages]. This is because one only sees pieces of a hyperobject [such as global warming (supra mn. 1)] at any one moment” (Timothy Morton).14 9

III. Key frameworks: ‘sustainability’, ‘environmental justice’ – and ‘ecological justice’ 1. Integrative frameworks for “evaluating environmental decisions” 11

In their textbook on (U.S.) Environmental Law and Policy, James Salzman and Barton H. Thompson list “sustainable development” and “environmental justice” as two of four “analytical frameworks” for “evaluating environmental decisions”, the others being “ethics (environmental rights)” and “utilitarianism and cost-benefit analysis”.15 These four frameworks are, of course, not mutually exclusive, but partly overlapping and interdependent. However, they put different focuses on environmental policy issues. Many approaches to “utilitarianism and cost-benefit analysis” commonly have a strong tendency towards ‘economic’, market-oriented thought. The “environmental rights” approach has its main base in (Western) philosophies of individualism (‘the self’) and ‘liberty’. (However, it should be noted that conceptions of ‘environmental rights’ are to some extent open for socio-economic and ecological extensions beyond their traditional atomistically liberalist core.16 Moreover, many conceptions of ‘utilitarianism’ go beyond crude consumerism and grant value, e.g., on endangered species because of their mere existence – ‘existence value’17 – or ‘even’ acknowledge passible 13

Cf Morton, Dark Ecology, 2016, 5 et seq. Morton, Hyperobjects, 2013, 4. 15 Salzman/Thompson, Environmental Law and Policy, 4th ed., 2014, 31 et seq. 16 Cf Salzman/Thompson, Environmental Law and Policy, 4th ed., 2014, 34 et seq. 17 Cf Salzman/Thompson, Environmental Law and Policy, 4th ed., 2014, 41. 14

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animals as morally considerable (infra mn. 26). So, these approaches might be elements in a broader, pluralist ‘ecological justice’ framework (infra mns 25 et seq.). The ‘sustainability’ and ‘environmental justice’ frameworks have an inherently inter- 12 disciplinary impetus. Both of them try to combine and integrate philosophical, ethical, ecological, economic, sociological, political and cultural thought (and imagination) in analysing environmental topics. ‘Sustainability’ and ‘environmental justice’ try to provide complex answers to the spatiotemporal and agency-related difficulties of environmental issues. However, viewed from a ‘truly’ ecological perspective, both, ‘sustainability’ and ‘environmental justice’, have contortions, limitations and exclusions.18 In both frameworks there remain black boxes, forgotten times and dispensable beings. Thus, the present article will try to present additional and corrective approaches to ‘ecological justice’ (infra mns 25 et seq.).

2. First encounters, some basic definitions, some common(?) ground a) ‘Sustainability’ – integrating future interests. These days, one of the most 13 popular, though reductive, metaphors for boiling down the notion of ‘sustainability’ is the “ecological footprint”19 metaphor. This is particularly the case in the context of global warming, where people often use the metaphor’s variation ‘carbon footprint’. (Of course, there is the fundamental symbol of ‘the circle’ as well, which might be even more popular.) The ‘ecological’ or ‘carbon footprint’ metaphor directly points to the temporal (and, maybe, even ‘paleo’-geologic20) core of sustainability: Sustainability is mainly about time, about leaving behind marks for the future. Sustainability’s temporal dimension is downright palpable in the prefix “nach-” (‘after-’) in the German word ‘Nachhaltigkeit’. Sustainability’s temporal dimension is mainly oriented towards the future. This focus on the future is as important in Hans Carl von Carlowitz’ early-modern treatise on forestry, Sylvicultura oeconomica (1713), providing guidance for the cultivation of trees to meet future demands of timbre,21 as it is for the often-cited definition in the Brundtland Report (1987): “Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”22 Carlowitz’ treatise on forestry and the Brundtland Report have one more feature in 14 common. They both have a strong pragmatic and instrumental impetus. It was Carlowitz’ aim to secure a reliable supply of timbre mainly for mining and metal processing in the pre-industrial setting in eighteenth-century Saxony.23 (Still today, sustainability, at its core, “is typically understood as the effort to use natural resources less wastefully”24, as a resources management principle.) The Brundtland Report, too, is inherently instrumental. It pairs “sustainable” with “development”. Moreover, the Brundtland Report’s “sustainable development” caters for future (as well as present) “needs”, not least “the essential needs of the world’s poor, to which overriding priority should be given”25. The notions of “development” and “needs” serve as gateways for integrating social and economic interests. 18 Cf Low/Gleeson, Justice, Society and Nature, 1998, 103, 131 et seq., 133, 162 et seq.; Gardiner, A Perfect Moral Storm, 2011, 43; Kersten, Rechtswissenschaft 2014, 378 (390, 401). 19 Wackernagel/Rees, Our Ecological Footprint, 1996. 20 Cf Steffen/Grinevald/Crutzen/McNeill, 369 Philosophical Transactions of the Royal Society 2011, 842 (842): “human imprint on the global environment” as “a new epoch in Earth history”: the “Anthropocene” (infra mn. 28). 21 von Carlowitz, Sylvicultura oeconomica, 1713. 22 United Nations, Our Common Future, 1987, part I, ch. 2. 23 Cf Thiele, Sustainability, 2nd ed., 2016, 16 et seq. 24 Thiele, Sustainability, 2nd ed., 2016, 3. 25 United Nations, Our Common Future, 1987, part I, ch. 2.

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Taken together, Carlowitz’ and the Brundtland Report’s approaches to ‘sustainability’ reveal the framework’s ambitious integrative, apparently nearly holistic task: Sustainability is based on the “three pillars of society, ecology, and economy”26 and engages in “balancing of economic prosperity, social fairness, and environmental responsibility”27. In course of this endeavour, sustainability is purposely focusing on the future. This longing for the future is the source for sustainability’s popularity and for its success as a massively received framework around the world today. Thinking in terms of ‘sustainable development’ comes along as optimistic thinking. It can commonly be framed in the positive language of achieving objectives instead of the language of negative avoidance. ‘Sustainable development’ is about combining (‘self’‐)preservation, i.e., continuity, with progress and success; at the same time, it is about being morally and socially aware. This is, of course, a highly attractive mode of thinking, especially in an era of self-optimisation – however, there is some potential of naivety, self-deceit and abuse in this (over-)integrative approach (infra mns 22 et seq.).

b) ‘Environmental justice’ – integrating the interests of people worse ‘situated’. It is hard to find a significant metaphor for ‘environmental justice’, which could serve as a functional equivalent to the popular metaphors and symbols for ‘sustainability’ (the ‘footprint’, etc. – supra mn. 13). We suppose this is because of the quite prosaic impetus of ‘environmental justice’: At its core, the ‘environmental justice’ framework is about awareness of ‘real-world’ (human) beings suffering from environmental problems at certain ‘real-world’ places. So, instead of metaphors, quite tangible situations that stand representatively for ‘environmental justice’ come to mind (as “casual encounter[s]” or deconstructive ‘metonymies’28, as it were). For instance, one might think of a toxic waste landfill sited next to a rather poor local community inhabited by minority groups as a metonymy for ‘environmental injustice’.29 Indeed, the idea (and movement) of ‘environmental justice’ as born in the United States of America during the last quarter of the twentieth century is, at its heart, defined spatially, socio-economically – and with regard to civil rights.30 Basically, it is a socio-economic ‘geopolitics’ approach to environmental policy decisions, partially accompanied and catalysed by civil-rights aspects (infra mn. 19). 17 Environmental justice emphasises the fact that environmental burdens tend to be distributed disproportionately among localities, excessively disadvantaging poor and minority neighbourhoods. This is directly comprehensible with regard to the spatial dispersion of pollution (toxic waste, many air pollutants, noise, etc.). The spatial dispersion of pollution can be affected by siting decisions on where to locate pollution sources (dumps, power plants, traffic, etc.). Hence, environmental justice often turns on resistance to very specific locally unwanted land uses (LULU) and, sometimes, on ‘not in my backyard’ (NIMBY) mentalities.31 Further, a complex environmental justice approach has to integrate awareness of economic long-distance effects and shifting mechanisms. For instance, spatial pollution inequalities often do not simply result from 16

Thiele, Sustainability, 2nd ed., 2016, 5. Ayers, Sustainability, 2017, 2. 28 Cf de Man, in: Allegories of Reading, 1979, 57 (62 et seq.) (contrasting ‘metonymy’, which is based on “the casual encounter of two entities,” and ‘metaphor’, which is based on a “relational link between […] the two entities involved [… which] becomes so strong that it can be called necessary”). 29 Cf Salzman/Thompson, Environmental Law and Policy, 4th ed., 2014, 43 (describing the demonstrations against a toxic waste landfill in Warren County, North Carolina, U.S.A., a poor municipality with a predominantly ‘non-white’ population, in the 1980s); cf Walker, Environmental Justice, 2012, 78 et seq. 30 Cf Salzman/Thompson, Environmental Law and Policy, 4th ed., 2014, 43 et seq.; Kloepfer, Umweltgerechtigkeit, 2006, 20 et seq., 55, 59 et seq. 31 Cf Low/Gleeson, Justice, Society and Nature, 1998, 112 et seq. 26 27

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siting decisions as such, but also from complex housing market reactions to environmental policy decisions: Poorer people often are simply not able to move away from intensely polluted neighbourhoods because they are not able to pay higher rents for housing in less polluted areas.32 However, not only pollution, but also (the costs of) environmental protection and adaption measures potentially burden certain social groups in an unduly manner.33 Thus, a broad approach to environmental justice might also take into account how the costs for environmental protection and adaption measures are distributed among social groups. For instance, rising prices for housing, electricity, transport, food and consumer goods, affected by environmental policy measures, become a relevant issue in a broadly construed environmental justice framework. The civil-rights aspect of environmental justice is concerned with the environmental policy implications of (constitutional and statutory) rights of individuals, especially individuals from minority groups. This includes rights-based anti-discrimination efforts, mainly against ‘environmental racism’.34 Particularly, however not exclusively, in the United States35, the spatial and socio-economic dimension of environmental justice often implies environmental racism. Socio-economically poor neighbourhoods unduly burdened by pollution often have a large percentage of inhabitants from ‘minority’ groups (defined as ‘minorities’ nationwide or statewide, not locally). Environmental justice brings to the fore health and welfare interests (and rights) of people who are – literally and figuratively – ‘situated’ worse than the average citizen. The word ‘situated’ (as well as the German word ‘situiert’) captures the interplay of the spatial and the socio-economic dimension of environmental injustice. Moreover, the passive voice in the phrase ‘being situated’ points to a fundamental problem addressed by environmental justice: Environmental justice is about overcoming passivity. Minority groups’ typical passivity with respect to environmental policy issues is often involuntary. It has many reasons and faces such as economic confines (e.g., housing immobility, supra mn. 17), educational disadvantages (lack of information and awareness about environmental and health issues) and political inaction (low voting rates36). In the face of this multidimensional passivity commonly involved in environmental injustice, unsurprisingly, environmental justice comes along with an often overtly activist impetus as “a campaigning slogan, […] as an agenda, as a name given to a political movement.”37 The issues of ‘passivity’ and ‘activism’ will be taken up below in our discussion of global warming ‘agencies’ (infra mns 47, 58, 60). Environmental justice can be described as having a substantive core and a procedural jacket.38 The substantive core is essentially about distributive justice, about justly distributing environmental quality among human beings (infra mn. 35).39 However, given the economic, social and ecological complexities of environmental policy concerns, distributive environmental justice may be hard to define. Thus, procedural aspects of environmental justice might take over, e.g., integrating minority groups’ Cf Salzman/Thompson, Environmental Law and Policy, 4th ed., 2014, 44 et seq. Cf Kloepfer, Umweltgerechtigkeit, 2006, 21. 34 Cf Salzman/Thompson, Environmental Law and Policy, 4th ed., 2014, 44 et seq.; cf Walker, Environmental Justice, 2012, 20. 35 Cf Kloepfer, Umweltgerechtigkeit, 2006, 5. 36 Cf Salzman/Thompson, Environmental Law and Policy, 4th ed., 2014, 45. 37 Walker, Environmental Justice, 2012, 1, 21. 38 Cf Walker, Environmental Justice, 2012, 21; Salzman/Thompson, Environmental Law and Policy, 4th ed., 2014, 43 et seq. 39 Cf Low/Gleeson, Justice, Society and Nature, 1998, 24, 102 et seq. 32 33

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environmental interests in democratic and participatory procedures (infra mn. 51).40 The activist impetus at the heart of environmental justice (supra mn. 20) is reflected in this procedural prong.

3. Some traps: ‘lucid dreams’ of harmony, ‘greenwashing’ and anthropocentrist blind spots Sustainability and environmental justice each are inherently integrative (supra mns 15, 17) and highly prolific frameworks. Based on its three-pillar structure (supra mn. 15), sustainability proves especially absorptive. Remarkably, sometimes ‘environmental justice’ is treated as an integral part of ‘sustainability’41 – and vice versa42. Some trap of ‘over-integration’ is lurking in these broad approaches towards ‘sustainability’ and ‘environmental justice’. This ‘over-integration’ aspect threatens to weaken particularly the position of ecological aspects within the broader frameworks of ‘sustainability’ and ‘environmental justice’ simply because of the overwhelming overload of total framework elements that have to be put together and parameters that have to be adjusted. Besides this mainly quantitative overload aspect, by ‘over-integration’ we also mean the possibility that economic, social and ecological aspects ultimately become blurred and get swallowed up in some lucid dream of harmonic43 “sustainable development” (supra mn. 14), seemingly benefitting all and hurting nobody. 23 Closely related to this ‘over-integration’ trap, there is the problem of ‘greenwashing’. The sustainability framework is extremely popular today (supra mn. 15). However, it has become vulnerable to abuse by “[v]ague, hypocritical, or unsupported endorsements”44. ‘Sustainability’ often comes along as a mere marketing label in business and politics without substantially improving the consideration of ecological and social demands in the evaluation of projects and actions.45 Arguably, the environmental justice framework is less inclined to ‘greenwashing’. Given its ‘realist’, prosaic attitude (supra mn. 16) and often openly activist impetus (supra mns 20 et seq.), it can potentially serve as a metonymic deconstruction of the harmonic lucid dream of “sustainable development” (supra mns 16, 22). 24 Nevertheless, both, sustainability and environmental justice, can be used as highly prolific frameworks. Applied sincerely, they can offer solutions to environmental policy questions that pay attention to the wide range of interests typically involved. Nevertheless, sustainability and environmental justice have their limitations. First and foremost, both have “maintained a focus on questions of justice to people in the environment […], rather than expressing a politicised concern for justice to nature”.46 The two frameworks traditionally come along with a strong anthropocentric and instrumental emphasis. By and large, they are ignorant of and blind to non-human interests.47 22

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Walker, Environmental Justice, 2012, 21. Cf Thiele, Sustainability, 2nd ed., 2016, 39 et seq. (analysing “the geography of sustainability” with the sub-section “social inequality and environmental justice”, ibid., 52 et seq.); cf the critically descriptive approach in Walker, Environmental Justice, 2012, 1, 28 (describing “sustainable development” as the “master frame”, which incorporated “environmental justice ideas”, in the late 1990s in the UK). 42 Cf Salzman/Thompson, Environmental Law and Policy, 4th ed., 2014, 32. 43 Cf Kersten, Rechtswissenschaft 2014, 378 (406). 44 Thiele, Sustainability, 2nd ed., 2016, 6; cf Kahl, in: Kahl (ed.), Nachhaltigkeit durch Organisation und Verfahren, 2016, 1 (1 et seq.); Kahl, Nachhaltigkeitsverfassung, 2018, 1. 45 Cf Thiele, Sustainability, 2nd ed., 2016, 6 et seq. 46 Walker, Environmental Justice, 2012, 20 (describing ‘environmental justice’ in the U.S.A.; internal citations and italicisation omitted). 47 Cf Low/Gleeson, Justice, Society and Nature, 1998, 162 et seq. (on sustainability and “market environmentalism”), 103, 131 et seq., 133 (on environmental justice); cf Gardiner, A Perfect Moral Storm, 2011, 43. 41

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4. ‘Ecological justice’ – ‘space’, ‘time’ and ‘agency’ in the Anthropocene a) Ecophilosophical pluralism. For quite some time now, scholars as well as activists 25 have formulated philosophical and “politicised concern[s] for justice to nature”48 and to non-human beings. These scholars have emphasised the anthropocentric and instrumental limitations of both, sustainability and environmental justice, in addressing ecological issues (supra mn. 24). For instance, ‘as early as’ in 1998, Nicholas Low and Brendan Gleeson bundled up a pluralist conception of “ecological justice” as an additional framework for assessing environmental policy issues, expressly supplementing49 – not replacing – the frameworks of ‘sustainability’ and ‘environmental justice’.50 In framing their pluralist “ecological justice” framework, Low and Gleeson build on 26 older “ecophilosophical” approaches proposed from the 1970s onwards, which, in turn, are based on seminal thinkers like Spinoza, Bentham or Marx. These “ecophilosophical” approaches try to open up ‘justice’ to non-human beings in quite different ways. Low and Gleeson present three different routes for this endeavour: First, one could ‘simply’ expand the scope of moral considerability to include non-human beings, e.g., based on Peter Singer’s utilitarian criterion of whether a being can suffer pain.51 Second, ecosocialists and ecofeminists have pointed to social systems as systems of domination, which not only structure social relations among human beings but also relations between human and non-human beings.52 As a consequence, the ecofeminist Carolyn Merchant calls for a partnership ethic of “earthcare”, acknowledging notions of community, diversity, inclusion, care and respect53 among human as well as non-human agents.54 Third, Low and Gleeson point to ‘Deep Ecology’, championed by Arne Naess: Largely building on Spinoza and “eastern mysticism”, Deep Ecology proposes an environmental holism, extending ‘the self’ beyond the individual human to encompass the individual’s biotic community and the non-living foundations of this community.55 According to Low and Gleeson, these different approaches to ecological justice some- 27 how – quite abstractly – share in common “an ecologically enlarged conception of the self” in the light of a new understanding of both ‘society’ and ‘nature’.56 (True, there are also more radical ecophilosophical approaches, particularly object-oriented ontology – OOO – standpoints that question the validity of holistic-anthropocentric notions such as ‘nature’, ‘world’ or ‘space’ more fundamentally: “In a reality without a home, without world, […] objects are what constitute reality. […] The time of hyperobjects is the time during which we discover ourselves on the inside of some big objects (bigger than us, that is): Earth, global warming, evolution.”57) When Low and Gleeson call for an “enlarged conception of the self” as the foundation for ecological justice, they bring to the fore problems surrounding the notion of ‘agency’, i.e., the capacity of an ‘autonomous’ entity 48

Walker, Environmental Justice, 2012, 20. Cf Low/Gleeson, Justice, Society and Nature, 1998, 26. 50 Low/Gleeson, Justice, Society and Nature, 1998, 133 et seq. 51 Cf Low/Gleeson, Justice, Society and Nature, 1998, 138, with reference to, i.a., Singer, Animal Liberation, 1975. 52 Cf Low/Gleeson, Justice, Society and Nature, 1998, 143, 145. 53 Cf Kloepfer, VerwArch 2019, 419 (432 et seq.). 54 Merchant, Earthcare, 1996, 217; cf Low/Gleeson, Justice, Society and Nature, 1998, 148. 55 Cf Low/Gleeson, Justice, Society and Nature, 1998, 150 et seq.; for a critique of “Deep Ecology” as potentially fascist or apocalyptic cf McGrath, Thinking Nature, 2019, 33 et seq.; cf also Merchant, Earthcare, 1996, 216. 56 Low/Gleeson, Justice, Society and Nature, 1998, 134. 57 Morton, Hyperobjects, 2013, 116, 117 et seq.; for a critique of Morton’s OOO-based “Dark Ecology” cf McGrath, Thinking Nature, 2019, 73 et seq. 49

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to act. Particularly, they turn to the question of ‘moral agency’.58 For Low and Gleeson, writing in 1998, “ecological justice” is precisely about “reconsidering the interpretation of human autonomy in the light of ecophilosophy.”59 b) Anthropocenic culture of conflicts. At the turn to the third millennium, Paul Crutzen coined – or at least popularised – the term “Anthropocene” (with express reference to Antonio Stoppani’s description of an “anthropozoic era” in 1873): The Anthropocene is “the present, in many ways human-dominated, geological epoch,” having “started in the latter part of the eighteenth century […,] supplementing the Holocene.”60 During the Anthropocene, “humankind has become a global geological force in its own right.”61 Crutzen and other scholars have divided the Anthropocene into three stages – the industrialisation (stage 1), “the Great Acceleration” after 1945 (stage 2) and an on-going third stage, in which humankind is developing “growing awareness of human impact on the environment at the global scale and the first attempts to build global governance systems to manage humanity’s relationship with the Earth system.”62 In the reflective stage of the Anthropocene, humankind – facing the facts of anthropogenic global warming, man-made diminution of biodiversity and millennia-lasting high-risk nuclear waste – is increasingly articulating and negotiating changes in ‘our’ understanding of ‘time’ and ‘space’ and ‘agency’ and ‘knowledge.’63 This closely matches Low and Gleeson’s discussion of ecological justice, particularly their call to “reconside[r] the interpretation of human autonomy in the light of ecophilosophy”64 (supra mn. 27). 29 Quite in this vein, Jens Kersten has addressed the issue of (human) autonomy and agency in the reflective Anthropocene and drawn conclusions for (‘our’) political and legal governance. Building on the central notion of ‘conflict’ and referring to Peter Sloterdijk’s “Homo Sapiens luxus”, Kersten calls on humankind to engage as “emotionally and cognitively rich beings getting attuned to all the complexities of the Anthropocene, individually and institutionally.”65 According to Kersten, this requires that human beings acknowledge the far-reaching consequences of their actions including the manifold interdependencies and conflicts with other – human and non-human – beings. The Homo Sapiens luxus refrains from illicitly reducing the complexities of the Anthropocenic ‘world’ and addresses other being’s interests and resulting conflicts(!) in an open-minded as well as open-hearted fashion (infra mn. 58).66 30 It has to be emphasised that thinking in terms of Anthropocenic ecological justice should not be reduced to relationships of human beings to non-human beings. Rather, it re-defines ‘plain’ ‘justice’ among human beings as well.67 The spheres of the human and the non-human cannot be separated sterilely; “the human is always already occupied by nonhumans.”68 Viewed from the perspective of an Anthropocenic “culture of conflicts” as proposed by Kersten (supra mn. 29), some of ‘our’ legal conflicts and 28

58

Low/Gleeson, Justice, Society and Nature, 1998, 138, 148. Cf Low/Gleeson, Justice, Society and Nature, 1998, 24. 60 Crutzen, 415 Nature 23 (2002). 61 Steffen/Grinevald/Crutzen/McNeill, 369 Philosophical Transactions of the Royal Society 2011, 842 (843). 62 Steffen/Grinevald/Crutzen/McNeill, 369 Philosophical Transactions of the Royal Society 2011, 842 (856); cf Kersten, Rechtswissenschaft 2014, 378 (380). 63 Cf Kersten, Rechtswissenschaft 2014, 378 (378, 381). 64 Cf Low/Gleeson, Justice, Society and Nature, 1998, 24. 65 Kersten, Rechtswissenschaft 2014, 378 (413 et seq.), translation by M.K./R.D.N., with reference to Sloterdijk, Sphären III, Suhrkamp 2004, 699 et seq. 66 Cf Kersten, Rechtswissenschaft 2014, 378 (405 et seq., 413 et seq.). 67 Cf Low/Gleeson, Justice, Society and Nature, 1998, 103. 68 Morton, Oxford Literary Review 2012, 229 (231). 59

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legal doctrines appear in a new light. To give an example, we return to the case Lliuya v. RWE – a conflict between two human or at least humanly controlled agents. As mentioned above, the case involves intricate causation issues, particularly with regard to the ‘strange’ manner in which GHGs contribute to the greenhouse effect by forming a layer of “well mixed greenhouse gas” around the globe (supra mn. 8). Lliuya v. RWE is “already occupied by” the ‘strange’ non-human agent “well mixed greenhouse gas”. It is ‘strange’ (uncanny69 and possibly terrifying) to imagine an active and highly powerful object – some ecophilosophers would say: non-human being – called “well mixed greenhouse gas”, however, in the reflective Anthropocene, it is inevitable.

IV. Times, spaces (and agents) of global warming Taken together, the frameworks of ‘sustainability’ with its focus on ‘time’ (supra 31 mn. 13), ‘environmental justice’ with its focus on ‘space’ (supra mn. 16) and ‘Anthropocenic ecological justice’ with its special awareness of ‘strange’ ‘agents’ (such as “well mixed greenhouse gas” – supra mn. 30) allow ‘us’ to better acknowledge the spatiotemporal and agency-related strangeness of, i.a., global warming. By putting these frameworks next to each other, ‘we’ may get in the position to look for times, spaces and agents ignored by the traditional frameworks, allowing for post-sustainability (infra mn. 42) and para-environmental justice (infra mn. 48), as it were. It is time to turn to global warming in detail, to its many agents in various times (infra mns 32 et seq.) and various spaces (infra mns 43 et seq.). Put in the words of Timothy Morton: Global warming smears70; it is “not [simply] ‘in’ time and space. Rather, [it] ‘time[s]’ (a verb) and ‘space[s].’ [It] produce[s] time and space”71:

1. Times of global warming The Anthropocene (supra mn. 28) is, at the one hand, ‘our’ ‘paleo’-geologic present, 32 however, on the other hand, it is the era of transience – and, more importantly, of human reflection on transience.72 To conceive of conflicts surrounding global warming in an Anthropocenic aware manner (supra mn. 29) requires attention for global warming’s manifold temporal aspects, bridging present, past and future. a) The present: protecting the status quo, myopic distributive justice, “agrilogis- 33 tical” ‘presence’. Like most statutes and regulations, § 1004 Abs. 1 S. 1 BGB, the legal basis for the nuisance-akin claim in Lliuya v. RWE (supra mn. 5), is written in present tense: “If the property is interfered with […], the property owner may require the interferer to remove the interference.” What we encounter here could be called ‘legal present’. ‘Legal present’ is a complex structure: Of course, the statutory language, though grammatically set in the present tense, is applied to events that lie – at least in part – in the past. For Lliuya v. RWE, we have already pointed to the fact that the plaintiff is referring to a timespan reaching quite deep into the past (several decades of continuous GHG emissions – supra mns 3, 6). However, still, the claim is anchored in the present since the plaintiff is addressing the current threat posed by the rising water level of Lake Palcacocha to his property. A ‘threat’, to be sure, necessarily is an anticipation of possible future events, a prediction looking beyond ‘now’. However, 69

Cf Morton, Oxford Literary Review 2012, 229 (232). Cf Morton, Dark Ecology, 2016, 7. 71 Morton, Realist Magic, 2013, 176; cf Morton, The Ecological Thought, 2010, 2. 72 Cf Kersten, Rechtswissenschaft 2014, 378 (380 et seq.). 70

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this anticipation is fairly bound to the present situation, stressing the status quo as worthy of protection from impairments. (Of course, there are also more future-oriented forms of global warming litigation, lawsuits that demand more fundamental – i.e., ‘political’ – changes, including amendments of the law – infra mns 40, 50, 54 et seq.) 34 A strong fixation on the status quo can be found not only in large parts of traditional legal doctrine, but also in many approaches to environmental policy evaluations. Typically, the ‘environmental justice’ framework has a clear focus on the present. Regularly, it discusses questions of the spatial and social allocation of environmental quality and burdens (supra mns 16 et seq.) at a given moment in time. True, as outlined above, some approaches to ‘environmental justice’ try to integrate future interests (supra mn. 22) and, more fundamentally, there is some moment of change, emancipation, progress and ‘future’ inherent in the activist impetus typical for environmental justice (supra mn. 20). However, still, environmental justice is commonly fixated on environmental, health and welfare protection issues that come along as (mere) re-actions to quite specific measures threatening the environment, health or welfare such as certain siting decisions with regard to LULUs (supra mn. 17). 35 Nicholas Low and Brendan Gleeson have criticised traditional approaches to ‘environmental justice’ and ‘sustainability’ (supra mn. 25) because of their fixation on the status quo: These approaches tend to get “trapped in the politics of distributional justice” when they focus on “the spatial allocation of risk” instead of addressing the “production of risk”73 – and one might add: the production of conflicts (supra mns 29 et seq.). Low and Gleeson characterise ‘distributional justice’, which is at the heart of the ‘environmental justice’ framework (supra mn. 21), as myopic and superficial. They call for a more fundamental questioning of ‘our’ economic modes of production, distribution and consumption. To be sure, in the face of path dependencies, inertia and insistence on acquired positions (Besitzstände), this agenda is bothersome for many and politically controversial. Timothy Morton has tried to explain the fixation on ‘presence’ in ‘our’ prevailing environmental policy with what he calls “agrilogistics”, i.e., humankind’s relentlessly droning “machinery” of agricultural production well underway since the onset of human settling and husbandry about 12,000 years ago.74 For Morton, agrilogistics is deeply linked to “the metaphysics of presence”, or – put more bluntly – to “know[ing] where the next meal is coming from”.75 Agrilogistics is epitomised by the (agricultural) field, which, as a field, “remains constantly the same”, no matter whether you “plough it, sow it with this or that or nothing, [or] farm cattle” on it.76 36

b) The past: Neolithic and Industrial Revolution traumas, historical wrongs, reparative justice. For Morton, the establishment of the “agrilogistic” mode of production and consumption (supra mn. 35) during the Neolithic Revolution is the nucleus of anthropogenic global warming; the Industrial Revolution is its ‘logical’ continuation, aggravation and acceleration.77 In the course of the Industrial Revolution, human beings have started to deposit a thin layer of carbon in the Earth’s crust and, thus, have become a geological force, opening up the Anthropocene (supra mn. 28).78 This layer of carbon can now be detected in Arctic ice and deep lakes – forming a “geotrauma, a palimpsest of necessarily violent inscription events”.79 Of course, there is not only a carbon layer in 73

Low/Gleeson, Justice, Society and Nature, 1998, 131. Cf Morton, Dark Ecology, 2016, 38 et seq. 75 Morton, Dark Ecology, 2016, 48, 52. 76 Morton, Dark Ecology, 2016, 48. 77 Cf Morton, Dark Ecology, 2016, 42 et seq. 78 Cf Morton, Oxford Literary Review 2012, 229 (231 et seq., 234). 79 Morton, Oxford Literary Review 2012, 229 (231, 234). 74

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the Earth’s crust, but, moreover, a growing layer of “well-mixed greenhouse gases” in the Earth’s atmosphere (supra mn. 8), which is constantly and increasingly facilitating global warming. It has to be emphasised that this man-made layer of “well-mixed greenhouse gases” has an inherently ‘historical’ dimension since CO2 molecules regularly last in the Earth’s atmosphere for more than 100 years.80 Besides these geological and physical aspects, the “traumas” dating back to the 37 Neolithic and Industrial Revolutions have a socioeconomic and political dimension, too. The intense social upheavals linked to the Industrial Revolution are commonplace (Soziale Frage). However, Morton points to deeper roots and stresses the socioeconomic implications of the “agrilogistic” mode of production: According to Morton, right from the onset of human agricultural activity, there were miserable social conditions for many, patriarchy, social stratification and speciesism.81 Given this intertwining of the history of agriculture and industrialisation with the emergence and perpetuation of social and political inequalities, a deep environmental justice framework should have a historical dimension. Deep ‘environmental justice’ possibly has to be extended beyond its distributional justice core (supra mns 21, 34 et seq.) and involve questions of reparative justice as well. A historically aware environmental (or ecological) justice approach might have to negotiate calls for reparation, for reconciliation – and for future emancipation. Reparative environmental (or ecological) justice should be informed by positions and interests shaped by histories of social and political repressions, e.g., by ecological knowledge hold by people with disabilities, ecofeminist knowledge82, Indigenous traditional ecological knowledge (ITEK)83 and post-colonial ecological knowledge. Exemplarily, some ecofeminists claim that ‘we’ should move from ‘sustainable development’ (supra mn. 14) towards “sustainable livelihood”, an ambitious “peopleoriented approach that emphasizes the fulfillment of basic needs—health, employment, and old-age security, the elimination of poverty, and women’s control over their own bodies, methods of contraception, and resources.”84 A particularly important historical aspect of anthropogenic global warming con- 38 cerns the relationship between ‘developed’ and ‘developing’ (‘less economically developed’) countries, which is largely a question of (post‐)colonialism. ‘Developed’ countries have been contributing to the increase of “well-mixed greenhouse gases” around the globe for a much longer time, at the same time exploiting ‘developing’ countries’ resources (infra mn. 45). Should the differences between ‘developed’ and ‘developing’ countries in their respective (historical) shares in contributions to anthropogenic global warming count today when ‘we’ devise environmental policy? The basic ‘polluter pays’ principle (infra Part 1, B.) seemingly provides an easy solution: Polluters who have contributed to global warming to a larger extent in the past should pay proportionately more when it comes to the costs of climate damages, protection or mitigation. However, who exactly is (or was) “the polluter”? If one defines specific historical agents, i.e., certain nineteenth- or twentieth-century polluters, as “the polluter”, one could argue that it is problematic to confer climate change responsibility on these agents’ ‘descendants’. (At this point, we leave aside the additional problem of the relationship between responsibility and ignorance, the question whether it is possible to ascribe responsibility to agents who did not know about the consequences of their 80

Cf Frank, NVwZ 2018, 960 (961). Cf Morton, Dark Ecology, 2016, 44. 82 Cf, e.g., Merchant, Earthcare, 1996, 216 et seq. 83 Cf, e.g., Zenner, in: Deane-Drummond/Artinian-Kaiser (eds.) Theology and Ecology across the Disciplines, 2018, 179 (181). 84 Merchant, Earthcare, 1996, 222 et seq. 81

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actions.85) By what kind of criteria should such a ‘heritage’ of global warming responsibility built up by past agents be ascribed to agents in the present? One could think of political criteria (e.g., collective responsibility of nation-states or other political entities for ‘their’ past), legal criteria (legal rules of succession), or socio-economic criteria (compensation for socio-economic benefits ‘inherited’ from the past by ‘free-riding’ – i.e., shifting to the ‘beneficiary pays principle’86). Presumably, a large deal of these questions rather belongs to the ‘realm of politics’ (infra mn. 40) and international negotiations and not so much to the ‘realm of the law’ (yet). c) The future: limited tort law doctrines, long-term responsibilities, suing public agents, post-sustainability: resilience and dynamic coping. (How) can ‘the law’ respond to Low and Gleeson’s call for a more radical reconsideration and correction of ‘our’ “production of risks” and conflicts instead of merely distributing risks (supra mn. 35)? The answers to this question necessarily differ according to the particular legal system one is talking about. However, as a general matter, it might be useful to differentiate between private law claims, especially tort law claims, on the one hand, and public law claims on the other hand.87 As far as private law claims are concerned, commentators often stress the limitations of established doctrines, which allegedly resist easy application to global warming cases.88 For instance, in a comparative overview, Martin Spitzer and Bernhard Burtscher have identified three main elements of tort law claims under many jurisdictions: harm, misconduct and causation.89 According to Spitzer and Burtscher, particularly misconduct and causation are regularly difficult to prove in climate damages litigation.90 Especially the element of (culpable) ‘misconduct’ exemplifies tort law’s regular bias for the perpetuation of the status quo in ‘our’ “production of risk”. Many forms of risk production are simply not regarded as (culpable) ‘misconduct’ and, thus, do not carry the consequence of tort liability even if they cause global warming damages. However, there might be at least two alternative doctrinal routes that possibly go without the requirement of culpable misconduct: strict liability and injunctive relief doctrines91 (or, even less ‘intrusive’ for the emitting agent, claims to protective measures at the site of the potential harm as urged in Lliuya v. RWE – supra mn. 3). 40 Be that as it may, it seems, by and large, one has to turn from the sphere of (tort) law to the ‘realm of politics’ in order to engage in a fundamental reconsideration of ‘our’ “production of risks” and in a re-framing of conflicts, which would be directed to more profound changes in the future. Ecologic long-term responsibilities and the interests of future generations have to be addressed politically. However, this political endeavour is, to some extent, structured and framed by (constitutional and administrative) law. At this point, another type of climate change litigation, namely lawsuits against governments, against public authorities, and possibly even against legislative bodies, thus, a different “Rechtsregime” (supra mn. 7), might come into play. The U.S. Supreme Court’s decision in Massachusetts v. Environmental Protection Agency92 and the Dutch Urgenda 39

85 Cf Meyer, Ethical Perspectives 2004, 20 (adding that “people can be said to be harmed by wrongless harm-doing of previous generations”). 86 Cf Gosseries, Ethical Perspectives 2004, 36; others prefer the “Ability to Pay Principle”, cf Caney, CRISPP 2010, 203. 87 Cf Spitzer/Burtscher, JETL 2007, 137 (149). 88 Cf Spitzer/Burtscher, JETL 2007, 137 (162, 165 et seq., 175 et seq.); Chatzinerantzis/Appel, NJW 2019, 881. 89 Spitzer/Burtscher, JETL 2007, 137 (155 et seq.). 90 Spitzer/Burtscher, JETL 2007, 137 (162, 165 et seq.). 91 Cf Spitzer/Burtscher, JETL 2007, 137 (165 et seq., 174 et seq.). 92 549 U.S. 497 (2007).

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case93 can count as flagship litigations for this form of climate change litigation. In a nutshell, these litigations aim at compelling public political (or administrative) agents to intensify measures to be taken against global warming. Since they depend on the existence of a political community, these cases will be sketched out in our discussion of the political spaces of global warming (infra mns 50, 54 et seq.). More than the average private law claim, which usually shall preserve some status quo, 41 global warming related litigation directed against public political agents regularly aims at political changes in the future. In this respect, this kind of public law litigation seems to match the explicitly future-oriented framework of ‘sustainability’ (supra mn. 13) quite neatly. However, as some commentators have pointed out, the sustainability framework, mainly because of its rather conservative and highly integrative, even harmonising character (supra mns 15 and 22), might not be able to provide sufficient guidance for political changes necessary to address global warming’s causes and consequences.94 Sustainability, for its critics, a “common name for managing and regulating flows”95, does not question the necessity of these flows in the first place. Similar reservations have been brought forward against the precautionary principle as well as against notions such as Ulrich Beck’s “(world) risk society”96. According to Jens Kersten, in the Anthropocene, it might simply not be enough to address ecological problems in terms of “risks” that have to be kept down, canalised and managed.97 Thinking in terms of “risks” bears the risk to trivialise or block out substantial dangers as mere ‘residual risks’ or, conversely, to overstate worst-case scenarios.98 Moreover, the precautionary principle and risk management fail to provide substantive criteria for the definition, attribution and assessment of “risks”.99 Instead, according to Kersten, an Anthropocenic environmental (and ecological) 42 justice approach – as a form of post-sustainability100, as it were – should pay attention to the ecologically informed “culture of conflicts” (supra mns 29 et seq.). With regard to the temporal dimension of global warming, the notion of (ecological) ‘resilience’ might provide useful guidance. Kersten stresses the dynamic character of resilience. Awareness of resilience means a permanent negotiation between resistance and adaption, resulting in a dynamic process of experimentation and coping.101 To be sure, resilient dynamic coping must not be confused with simplistic, apologetic, consoling adulations of desired, but uncertain technological progress at the cost of necessary changes in the modes of production and consumption.

2. Spaces of global warming a) Geographic and ecological spaces: coal basins, glaciers, the Norwegian Bour- 43 gogne – and the upper atmosphere; non-human agents. “Geography is fate” – this axiom, sometimes ascribed to Heraclitus102, casts an obscure light on the deeper ‘meaning’ of ‘geography’. Indeed, the spatial allocation of global warming’s causes and consequences seems to be “fate”. Just recall Lliuya v. RWE (supra mn. 3): Somehow it might be “fate” that the defendant, RWE, is based in Essen, North Rhine-Westphalia, 93

Rechtbank Den Haag, Judgment of 24 June 2015, C/09/456689, HA ZA 13-1396. Cf Kersten, Rechtswissenschaft 2014, 378 (390, 406); Morton, Realist Magic, 2013, 113. 95 Morton, Realist Magic, 2013, 111. 96 Beck, World Risk Society, 1999, 19 et seq. 97 Cf Kersten, Rechtswissenschaft 2014, 378 (401 et seq.). 98 Cf Kersten, Rechtswissenschaft 2014, 378 (402). 99 Cf Kersten, Rechtswissenschaft 2014, 378 (403 et seq.). 100 Cf Kersten, Rechtswissenschaft 2014, 378 (390, 406). 101 Cf Kersten, Rechtswissenschaft 2014, 378 (409). 102 Cf Busby, in: Western Literature Association (ed.), Updating the Literary West, 1997, 520. 94

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Germany, at the heart of what was once one of the largest coal-mining areas on Earth. And somehow it might be “fate” that Lliuya’s property, located in the Huaraz region, Peru, is situated below the melting Palcaraju glacier and the swelling Lake Palcacocha. To be born in the Ganges delta area or at the edge of the Sahel, or to be a Norwegian vintner benefitting from global warming103 – all of this might count as “fate”. Further, one could call it “fate” that global warming severely changes landscapes (e.g., California North Coast vineyards devastated by wildfires) and ecosystems (‘ecological spaces’, as it were), resulting in a drastic loss of biodiversity (consider, e.g., corals, sea grasses and kelps annihilated by marine heat waves104). 44 However, today, in the reflective phase of the Anthropocene, Heraclitus’ adage is even more obscure than it might have been 2,500 years ago. Global warming’s spatial hugeness calls into question the notion of “fate”: As mentioned above, the global greenhouse effect is caused by a partly man-made layer of “well-mixed greenhouse gases” in the Earth’s atmosphere (supra mn. 8), which is spanning Essen, Huaraz, the Ganges delta, the Sahel, Norwegian and Californian vineyards ‘at the same time’. In the reflective Anthropocene, viewed from an object-oriented ontology perspective (supra mn. 27), geographic and ecological entities, including man-made countryside, come into the picture as beings that interact with other (human and non-human) beings. For Timothy Morton, global warming, viewed as a hyperobject (supra mns 1, 31), deconstructs ‘space’ as an anthropomorphic concept, as a dubious attempt to safely anchor the human ‘self’ in a deceptively fathomable and ‘present’ (supra mn. 35) constellation of other beings viewed as a ‘space’, a ‘world’, a ‘home’ (supra mn. 27).105 b) Economic, social, ‘cultural’ and ‘identity’ spaces: ‘skewed’ para-environmental justice. And still, human beings do think in spatial metaphors and categories. Contingent constellations of sites, places and beings are interpreted as social, economic, political or legal ‘spaces’. For instance, in the socioeconomic realm, ‘we’ may identify spatial dispersions and accumulations of wealth and poverty and relate them to global warming. Indeed, ‘environmental justice’ approaches to global warming precisely focus on spatially defined inequalities with regard to contributions to as well as disadvantages and benefits from climate change (cf supra mns 16 et seq.). One may identify quite distinctly marked socioeconomic inequalities along the fault line separating the Global North from the Global South106 (however cf mn. 48). Many places in the Global South, among them the Ganges delta, the Sahel and Huaraz, are disproportionately disadvantaged by floods, droughts, glacial melting and other consequences of global warming, whereas many places in the Global North, e.g., the municipality of Essen, disproportionately benefit from activities causing GHG emissions. Moreover, the historical dimension of global warming – different shares in historical GHG emissions – outlined above (supra mns 37 et seq.) acquires spatial shapes in the present. 46 Most ‘environmental justice’ issues with regard to global warming are of a different kind compared to purely local environmental conflicts, e.g., siting decisions about where to carry out locally harmful projects (LULUs – supra mns 16 et seq.). (To be sure, global warming involves some LULU and NIMBY issues, too, e.g., siting decisions about where to locate wind power plants.) Local environmental conflicts commonly may be broken down into encounters of a specific harmful action with specific (socioeconomically defined) vulnerabilities. In contrast, the spatial dimension of global warming justice is more complex. 45

103

Cf Kersten, Rechtswissenschaft 2014, 378 (400). Smale et al., Nature Climate Change 9 (2019), 306. 105 Cf Morton, Dark Ecology, 2016, 10 et seq. 106 Cf (on a descriptive meta level) Walker, Environmental Justice, 2012, 184. 104

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Although one can identify places around the globe that are extraordinarily vulnerable to the negative consequences of global warming (supra mn. 45), it is difficult to identify definite correlations between specific contributions to global warming on the one hand and specific vulnerabilities on the other hand. Thus, thinking in bilateral terms is frustrated. However, as outlined above, environmental justice is not exclusively about justly 47 distributing environmental harm, but also about justly distributing the socioeconomic (financial) costs for protective and adaptive measures (supra mn. 18). On that score, the plaintiff in Lliuya v. RWE has proposed to single out specific shares in the allocation of costs in proportion to the respective shares in historical GHG emissions (supra mn. 3). Lliuya’s claim may be read as the attempt to reduce the multilateral complexities of global warming’s causes and consequences to a tangible bilateral relation between a specific emitter and a specific victim. That may be practically feasible in the exceptional case Lliuya v. RWE since RWE is one of the largest GHG emitters around the globe, thus representing a relevant share in historical GHG emissions. (And notably, Lliuya is supported by the NGO Germanwatch [infra mn. 58] – thus, Lliuya v. RWE as strategic litigation does not meet the classic picture of a bilateral private law suit.) However, there are many more historical emitters, most of them much smaller than RWE. So, by and large, given the multicausal and multilateral complexities of global warming processes, environmental justice might rather be an important factor for (international) political negotiations about how to share the financial burden of global warming. Such political negotiations might be framed and partially guided by – enforceable(?) – international law principles open for global environmental justice concerns. However, it might be rather difficult to find manageable substantive principles. Here, the procedural dimension of environmental justice (supra mn. 21) comes into play. Environmental justice has to aim at overcoming political inaction of social (and political) groups ‘worse situated’ – another ‘traditional’ tenet of the environmental justice framework (supra mn. 20). In the age of globalised capitalism, intense migration and the formation of a 48 cosmopolitan elite, socioeconomic spatial dispersions may be more aptly described by the metaphor of a marble cake than by clear-cut geographic and social boundaries. Increasingly, in the Global South as well as in the Global North, many different degrees of global warming contributions and vulnerabilities get fairly mixed up. Thus, an elaborated ‘environmental justice’ framework should not only focus on socioeconomic dispersions from a geographical-socioeconomic macro perspective (Global North v. Global South), but also from a more nuanced micro perspective, paying attention to the different socioeconomic statuses of, e.g., people in world cities, in exurbs and in rural areas around the globe – ‘glocal’ (global and local) thinking or ‘skewed’ para-environmental justice as it were. Additionally, such a glocal perspective might coincide with growing awareness of the dispersion of ‘cultural’ spaces and ‘identity’ spaces, acknowledging, e.g., the existence of specifically ‘racialised’ or ‘genderised’ spaces around the globe and, thus, integrating minority groups’ interests and knowledge (supra mns 19, 37) in questions of global warming justice. c) Political and legal spaces I: nation-states – insufficient, but still essential. In the 49 Anthropocene (supra mn. 28), the spatial order of the political ‘realm’ is getting fairly churned up. The metaphor of (glocal) marble cakes for spatial socioeconomic structures (supra mn. 48) directly points to the difficulties involved in the task of assigning social (and potentially political) groups and places to each other. Relevant keywords are ‘global governance’ and ‘cosmopolitical (post‐)democracy’.107 At this point, it becomes 107 Cf Kemper, Politische Legitimität und politischer Raum im Wandel, 2015, 310 et seq. (on global governance), 318 et seq. (on unbounded cosmopolitical spaces), 332 et seq. (on post-democratic spaces).

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apparent that the questions of Anthropocenic ‘spaces’ and ‘agencies’ are inextricably linked to each other. To be sure, the nation-state remains a potent spatially defined agent for the politics of global warming (infra mns 50 et seq.). However, global warming emphasises the importance of political spaces smaller as well as larger than the nationstate, too (infra mns 52 et seq.). 50 The on-going potency of the nation-state as an important agent in politics (and litigation) concerning global warming becomes apparent when we look at the Dutch Urgenda litigation: The Urgenda Foundation, a citizens’ platform (infra mns 51, 58), sued the State of the Netherlands in the Rechtbank Den Haag (District Court), Chamber for Commercial Affairs, in order to compel the government to intensify their efforts to reduce Dutch GHG emissions. Urgenda’s suit was successful. Even though the court did not deduce specific (‘hard’) constitutional rights to climate change mitigation measures from the Dutch Constitution or European Union law, it carried out a (‘soft’) assessment and balancing of interests on the basis of “case law about government liability” in order to determine whether there is a “breach of standard of due care observed in society” on behalf of the Dutch state.108 Ultimately, the court found an “unlawful hazardous negligence on the part of the State” in transgression of the government’s discretion.109 (In the course of its ‘soft’ assessment, the court relied on, i.a., Dutch constitutional law as well as European Union law, e.g., the Charter of Fundamental Rights of the EU and the EU treaty law, and international law, as guidelines.) Urgenda makes clear that the nation-state and its (constitutional, administrative or “state liability”) law may serve as a forum for citizens to urge their own political community towards climate change mitigation. Of course, this presupposes the courts’ willingness to hear such cases. In October 2019, the Verwaltungsgericht Berlin, a lower German court for administrative jurisdiction, opted for a narrow approach to the relevant standing doctrines and dismissed a global warming action brought by organic farmers and Greenpeace against the German Federal Government due to lack of standing.110 51 Nation-states keep a more fundamental function, which is at the bottom of their (potential) role in global warming litigation as exemplified by the Urgenda case: Nationstates potentially provide democratic forums; they can play an important role for finding solutions to (some) questions of climate justice in processes of democratic lawmaking, especially in national parliaments. Thus, in Urgenda, the Rechtbank Den Haag emphasised the Dutch government’s “extensive [even though not unlimited] discretionary power to flesh out the climate policy”.111 Democratic law-making in nationstates might still be the most important mechanism for the difficult task of addressing – partly uncomfortable and unpopular – ecological long-term responsibilities (supra mn. 40). Where if not here could it be possible to identify, assess and balance the myriad responsibilities and vulnerabilities involved in global warming? Additionally, democratic institutions on the level of the nation-state serve as gateways for international politics (infra mns 56 et seq.). However, there is a structural tension between the bond to the ‘present’ inherent in representative democracy with its periodic elections and time-bound grants of legitimacy (Herrschaft auf Zeit) on the one hand and long-term responsibilities for future generations on the other hand.112 Additional to 108

Rechtbank Den Haag, Judgment of 24 June 2015, C/09/456689, HA ZA 13-1396, mn. 4.53. Rechtbank Den Haag, Judgment of 24 June 2015, C/09/456689, HA ZA 13-1396, mn. 4.53 et seq. 110 VG Berlin, Judgement of 31.10.2019, VG 10 K 412.18. 111 Rechtbank Den Haag, Judgment of 24 June 2015, C/09/456689, HA ZA 13-1396, mn. 4.74. 112 Cf Kloepfer, in: Gethmann/Kloepfer/Nutzinger, Langzeitverantwortung im Umweltstaat, 1993, 22 (22 et seq.); Appel, Staatliche Zukunfts- und Entwicklungsvorsorge, 2005, 87. 109

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specific institutions in charge of future concerns (sustainability commissions, etc.)113 and nuanced instruments of participatory and direct democracy114, it might require precisely Urgenda-style global warming litigation to force uncomfortable items on the political agendas of nation-states and press or maybe support legislators in their climate policy ambitions.115 Additionally and partly cumulatively, NGOs and citizens’ platforms may serve as catalysing agents – be it as lobbyists, be it in litigation as the Urgenda Foundation’s work exemplifies (supra mn. 50). d) Political and legal spaces II: polycentrism, (g)local communities, federalism 52 and supra-nationalism. Even though nation-states remain important political agents in the Anthropocene, the socio-economic and ‘cultural’ spaces of global warming such as ‘world cities’ (supra mn. 48), let alone the vast geographical-ecological space formed by the Earth’ atmosphere (supra mn. 44), simply do not match the boundaries of nationstates. Thus, in order to remain capable of acting politically in the Anthropocene, we need political agents and legal structures beyond the nation-state – both ‘above’ (infra mns 55 et seq.) and ‘below’ (infra mns 53 et seq.) the level of the nation-state. Addressing global warming is a “multiscalar problem” (Hari M. Osofsky), thus requiring the combination of policy answers of many different scales to be negotiated and implemented in differently sized political spaces through a “polycentric approach” (Elinor Ostrom):116 Given global warming’s vastness, it might seem counter-intuitive to look for relevant 53 political agents ‘below’ the level of the nation-state. However, traditionally, the spatial aspect of environmental justice is to a large degree about subsidiarity and localism.117 Nowadays, with respect to the ‘glocal’ intricacies of the socio-economical and cultural spaces of global warming (supra mn. 48), local actors ‘still’ have a word to say. This is true for ‘world cities’ collaborating in global warming mitigation and adaption efforts in networks such as C40, a rather exclusive group of mega cities and smaller innovator cities118, as well as for rural municipalities dealing with NIMBY conflicts about the siting of, e.g., wind power plants and decentralised energy supply infrastructure (supra mns 16 et seq., 46). Federalism as an especially elaborated manifestation of sub-national political differ- 54 entiation may serve as another potent factor in enhancing global warming policy. Federalism potentially provides additional forums – and agents – for global warming legislation and litigation. However, as federalism in the United States of America illustrates, there may be frictions between rivalling Rechtsregime (supra mn. 7): The U.S. Supreme Court decided that public nuisance claims, i.e., litigation based on tort law, by states (or local governments) are displaced by the regime of federal administrative law established under the Clean Air Act (CAA).119 This makes the Environmental Protection Agency (EPA), which is to a large degree responsible for enforcing the CAA, the main actor in U.S. global warming policy. Then again, administrative law under the CAA entails intricate cooperative federalism implications, which potentially have a litigation 113

Cf Kahl, Nachhaltigkeitsverfassung, 2018, 105 et seq. Cf Kahl, Nachhaltigkeitsverfassung, 2018, 55 et seq.; Kahl, in: Kahl (ed.), Nachhaltigkeit durch Organisation und Verfahren, 2016, 1 (20 et seq., 32 et seq.). 115 Cf Hahn, Umwelt- und zukunftsverträgliche Entscheidungsfindung des Staates, 2017, 331 et seq. (proposing a nuanced standard for judicial review of legislative acts with regard to sustainability). 116 Osofsky, in: Burns/Osofsky (eds.), Adjudicating Climate Change, 2009, 129 et seq.; Ostrom, A Polycentric Approach for Coping With Climate Change, 2009; Aust, Das Recht der globalen Stadt, 2017, 281 et seq. 117 Cf Salzman/Thompson, Environmental Law and Policy, 4th ed., 2014, 43 et seq. 118 Cf Aust, Das Recht der globalen Stadt, 2017, 293 et seq. 119 American Electric Power v. Connecticut, 564 U.S. 410 (2011); cf Salzman/Thompson, Environmental Law and Policy, 4th ed., 2014, 168 et seq.; Spitzer/Burtscher, JETL 2007, 137 (145 et seq.). 114

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dimension: In Massachusetts v. EPA (2007) the U.S. Supreme Court affirmed Massachusetts’ standing in a lawsuit that aimed at forcing the federal agency EPA to (ascertain whether it is statutorily obliged to) address global warming under the CAA. 55 It is quite plausible to turn to political levels ‘above’ the nation-state in order to find relevant agents in climate change policy. On an intermediate level, (sub‐)continental economic communities and unions provide potential forums for addressing global warming, particularly with regard to its socio-economic implications. Above all, the European Union, a supra-national organisation, stands as the poster child for an attempt to parallelise socio-economic and political spaces in ‘functional integration’. In its Urgenda decision, the Rechtbank Den Haag intensely relied on EU law in specifying the standard the Dutch government has to meet in order to fulfil its duty of care with regard to global warming mitigation (supra mn. 50). Besides, there are attempts to establish global warming litigation on the level of the EU itself. In Carvalho et alii v. Parliament and Council, an action for annulment under Article 263 TFEU, several farmers and owners of small tourism businesses from different rural areas around the globe challenged three EU legislative acts addressing global warming for not being ambitious enough to meet the binding requirements of EU fundamental rights and international treaty law (especially the 2015 Paris Agreement). The General Court of the EU (EGC) dismissed the action due to lack of standing under the Plaumann criterion, which requires that the “contested act affects [the plaintiffs] by reason of certain attributes that are peculiar to them or by reason of circumstances in which they are differentiated from all other persons, and by virtue of these factors distinguishes them individually”.120 e) Political and legal spaces III: pluralist globalism(s): UNFCCC, IPCC, “extrastatecraft”, international NGOs, conflict of laws. Being the global phenomenon par excellence, anthropogenic climate change additionally – not exclusively (supra mn. 52) – calls for strong political forums on the global scale. Given the vast socioeconomic, ‘cultural’ and political diversity around the globe, it is extremely difficult to imagine how ‘we’ could create institutions that can legitimately speak for what one might call the “Anthropos”, i.e., some embodiment of humankind as a central agent in the Anthropocene (supra mn. 28).121 Neither “a (directly) democratically elected World Environment Council [nor] an (appointed) International Court of the Environment”122 seem to be within the range of possible institutional arrangements for the next decades to come. Instead, the major part of transnational global warming policy-making has to get carried out by inter-national foreign affairs and inter-national organisations – the United Nations Framework Convention on Climate Change (UNFCCC) and the Intergovernmental Panel on Climate Change (IPCC) being the most important forums. 57 From the perspectives of – ecologically aware – sustainability and environmental justice (supra mn. 31) the UNFCCC’s mission is overwhelmingly complex; it is obvious that this multifarious task requires engagement of more than one single institution such as the UNFCCC. What ‘we’ need – besides multiscalar climate action in local, regional, national and supra-national spaces (supra mns 52 et seq.) – are pluralist globalism(s). Pluralist globalism(s) can come along formally as well as informally. Informal – and often hidden – constellations of power are set up around large-scale infrastructures such as energy supply or broadband data networks. These infrastructures – constellations situated inside as well as outside the ‘realm(s) of the law’ and crossing the public-private 56

120 EGC, Order of 8 May 2019, T‐330/18, mn. 45 et seq.; currently on appeal: ECJ, C-565/19 P; for a critique of the Plaumann criterion cf Winter, ZUR 2019, 259 (266 et seq.). 121 Cf Kersten, Rechtswissenschaft 2014, 378 (394), with references to Latour, Politiques de la nature. Comment faire entrer les sciences en démocratie, 1999. 122 Low/Gleeson, Justice, Society and Nature, 1998, 26 et seq.

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divide – have been described as ethically ambivalent123 “extrastatecraft” (Keller Easterling).124 Whoever wants to have a say in the management of the causes and consequences of global warming has to address (‘glocal’) infrastructure, which is at the ‘bottom’ of the interplay of technical development, social integration, political power and ecology125. Within the scope of globalist approaches addressing climate change, global warming 58 litigation may be one component among others. Here, too, one can find formal structures as well as informally-formally hybrid (infra‐)structures. The intricate regime of conflict of laws provides an example for formal structures of global climate change litigation. Conflict of laws doctrines make it possible to have – spoken spatiallymetaphorically – eversions or convexities of domestically rooted legal rules. In Lliuya v. RWE, the Peruvian plaintiff is suing the German-based business corporation RWE under German law, i.e., under “the law of the country in which the event giving rise to the damage occurred” (Art. 7 EU Rome II Regulation). Besides, Lliuya v. RWE exemplifies the workings of some of the informal infrastructures of litigation: Consider the role of the globally active NGO Germanwatch e. V., which is supporting the plaintiff (supra mns 4, 47) in order to provide environmental justice in the form of approximately equal opportunities in court and, thus, to some extent playing the role of Homo Sapiens luxus (supra mn. 29). Globally networked scientists and expert witnesses provide more basic litigation infrastructure.

V. Coda: “more time tunnels of different sizes” During the ride through some times (supra mns 32 et seq.) and spaces (supra 59 mns 43 et seq.) of global warming, we encountered a multitude of relevant agents. Global warming agencies from the past, the present and the future are framed geographically, ecologically, (socio‐)economically, politically and legally. The range of global warming agents encompasses historical agents such as patriarchal pioneers of industrialisation or minorities that have been structurally suppressed for centuries in the machineries of fossil-fuelled industrialisation (supra mn. 37), future agents such as unborn generations (supra mn. 40), non-human agents such as “well-mixed greenhouse gas”, Californian and Norwegian vineyards or corals, sea grasses and kelps (supra mn. 43) as well as tightly networked agents in the workings of “extrastatecraft” such as transnationally active energy suppliers and NGOs (supra mns 57 et seq.). The foregoing catalogue of agents somehow insinuates that it might be easy to 60 ethically categorise the different agents of global warming in a Manichaean manner, contrasting villains and victims of global warming. To be sure, this is true for some constellations. However, in many everyday situations the difference between ‘active’ roles (‘villains’) and ‘passive’ roles (‘victims’) may be delusive.126 One and the same agent possibly plays different roles on the stage(s) of global warming. At any rate, there are almost never easy solutions to global warming conflicts. Reconsider the conflict underlying Lliuya v. RWE: if one takes the Anthropocenic “culture of conflicts” described by Jens Kersten (supra mns 29 et seq.) seriously, the relief sought by the plaintiff – protection by means of “sustainably” draining Lake Palcacocha (supra mn. 3) 123

Cf Neugärtner, Rechtswissenschaft 2017, 461 (471 et seq.). Easterling, Extrastatecraft. The Power of Infrastructure Space, 2014, 15 (without express reference to global warming). 125 Cf Kersten, Rechtswissenschaft 2014, 378 (409). 126 Cf Morton, Realist Magic, 2013, 182. 124

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– might be viewed as rather oppressive vis-à-vis the agent Lake Palcacocha and, at least, ignorant of the “fate” (supra mns 43 et seq.) of the agent Palcaraju glacier. 61 Some of the agents listed above may still appear ‘strange’. They call for institutional, legal and doctrinal amendments and innovations. The overall task is vast: it is necessary to integrate social, economic and ecological thought (supra mn. 12), to acknowledge aspects of reparative justice by evaluating the historical wrongs related to global warming (supra mns 37 et seq.), to open considerations for the interests of people (especially minorities) ‘worse situated’ locally as well as globally (supra mns 45 et seq.) and to discover the myriad ecological conflicts among human as well as non-human beings in dynamic forms of resilience and coping (supra mn. 42). The foregoing investigations showed that different forms of litigation – actions against private agents (supra mns 4, 39, 47, 58) as well as actions against public agents (supra mns 40, 50, 54 et seq.) – can (and should) play a facilitating, spurring role in this multiscalar endeavour. However, the inquiry also revealed that the role of global warming litigation is necessarily a limited – but indispensable – one (supra mns 39 et seq., 47, 50, 54 et seq., 58). Anthropocenic ecological justice discourse requires “amazement, open-mindedness, and wonder [… as well as] doubt, confusion, and scepticism.”127 We need some experimentation and instinct (Fingerspitzengefühl) to find “more time tunnels of different sizes”128 – aesthetically, politically and legally129. 127

Morton, The Ecological Thought, 2010, 2. Morton, Dark Ecology, 2016, 113. 129 Cf Neugärtner, myops 2018, 4 (12, in n. 1) (putting into play “law and the humanities as interart studies” with regard to environmental policy). 128

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B. Climate damages and the ‘Polluter Pays’ Principle Bibliography: Beyerlin/Marauhn, International Environmental Law, Hart/Beck 2011; Bugge, The Polluter Pays Principle: Dilemmas of Justice in National and International Contexts, in: Ebbeson/Okowa (eds.), Environmental Law and Justice in Context, Cambridge University Press 2009, p. 411; Bugge, The Principles of “Polluter Pays” in Economics and Law, in: van den Berg/Eide (eds.), Law and Economics of the Environment, Juridisk 1996, p. 54; Dupuy/Viñuales, International Environmental Law, 2nd ed., Cambridge University Press 2018; Dworkin, Taking Rules Seriously, Harvard University Press 1977; Epiney, Umweltrecht der Europäischen Union, 4th ed., Nomos 2019; Frenz, Das Verursacherprinzip im Öffentlichen Recht, Duncker & Humblot 1997; Gaines, The Polluter-Pays Principle: From Economic Equity to Environmental Ethics, 26 Tex. Int. L. J. 463, 1991; International Union for the Conservation of Nature and Natural Resources/International Council of Environmental Law (eds.), Draft International Covenant on Environment and Development, 5th ed. IUCN 2015; Kaswan, Adaptation justice, in: Farber/Peeters (eds.), Climate Change Law, Edward Elgar 2016, p. 605; Kettlewell, The Answer to Global Pollution? A Critical Examination of the Problems and Potential of the Polluter-Pays Principle, 3 Col. J. Int. Env. L. & Pol. 129, 1992; Martin, Principles and Rules, in: Krämer/Orlando (eds.), Principles of Environmental Law, Edward Elgar 2018, p. 13; Mayer, The International Law on Climate Change, Cambridge University Press 2018; Mayer, The Place of Customary Norms in Climate Law: A Reply to Zahar, 8 Climate Law 261, 2018; Mayer, The Applicability of the Principle of Prevention to Climate Change: A Response to Zahar, 5 Climate Law 1 (2015); Orlando, Liability, in: Krämer/Orlando (eds.), Principles of Environmental Law, Edward Elgar 2018, p. 272; Proelss, Polluter-Pays, in: Aguila/Viñuales (eds.), A Global Pact for the Environment – Legal Foundations, Cambridge University Press 2019, p. 85; Rehbinder, Politische und rechtliche Probleme des Verursacherprinzips, Erich Schmidt Verlag 1973; Rehbinder, Extra-territoriality of pollution control laws from a European perspective, in: Handl/Zekoll/Zumbansen, Beyond Territoriality. Transnational Legal Authority in an Age of Globalization, Martinus Nijhoff 2012, p. 127; de Sadeleer, Environmental Principles – From Political Slogans to Legal Rules, Oxford University Press 2002; de Sadeleer, The Polluter-Pays Principle in EU Law – Bold Case Law and Poor Harmonisation, in: Backer/ Fauchald/Voigt (eds.), Pro Natura, Festskrift til Hans Christian Bugge, Universitetsforlaged 2012, p. 405; Sands/Peel, Principles of International Environmental Law, 4th ed., Cambridge University Press 2018; Schwartz, The polluter-pays principle, in: Fitzmaurice/Ong/Merkouris (eds.), Research Handbook on International Environmental Law, Edward Elgar 2010, p. 243; Schwartz, The Polluter-Pays Principle, in: Krämer/Orlando (eds.), Principles of Environmental Law, Edward Elgar 2018, p. 260; Scott, Unilateralism, extraterritoriality and climate change, in: Farber/Peeters (eds.), Climate Change Law, Edward Elgar 2016, p. 167.; Wolfrum/Langenfeld, Environmental Protection by Means of International Liability Law, Erich Schmidt Verlag 1999; Zahar, Methodological Issues in Climate Law, 5 Climate Law 25, 2015; Zahar, The Contested Case of Climate Law, 8 Climate Law 244, 2018.

Contents I. Introduction ..................................................................................................... II. Historical development and state of recognition..................................... 1. Historical development ............................................................................. 2. State of recognition .................................................................................... III. Legal nature...................................................................................................... 1. Principle or rule? ........................................................................................ 2. Legal effects.................................................................................................. IV. Functions .......................................................................................................... 1. Diversity of functions ................................................................................ 2. Internalisation vs. instrumental orientation ......................................... 3. Redistribution of costs vs. material responsibility .............................. V. Contents and limits ........................................................................................ 1. Generalities................................................................................................... 2. Protected assets ........................................................................................... 3. Identification of the polluter (originator) ............................................. 4. Causation and accountability................................................................... 5. Delimitation from the common burden principle..............................

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Part 1. Fundamental questions VI. Instruments ...................................................................................................... 1. Generalities................................................................................................... 2. Liability in particular ................................................................................. VII. Conclusion........................................................................................................

37 37 39 46

I. Introduction As a consequence of increased emissions and stocks of greenhouse gases (GHGs), especially carbon dioxide (CO2) and methane, in the atmosphere and the decrease of the absorption capacity of natural sinks the earth is already now confronting considerable climate damage. According to the assessment of the scientific community, climate damage will become massive unless the increase of global warming will be kept at 2 or even 1.5 degrees in the foreseeable future as agreed upon in the Paris Agreement on Climate Change. The sources of GHG emissions are quite varied. Industry and public utilities, traffic, buildings, land use and land use changes, especially agriculture, deforestation and forest and peat fires are among the most important sources. Not only identifiable emitters or land users, but ultimately all inhabitants of the earth contribute in some respects to global warming. The resulting climate damage ranges or may range from the submerging of low lying islands and coasts, extreme weather episodes, the melting of ice in the Arctic and Antarctica, the melting of glaciers elsewhere, droughts and increases of desertification to biodiversity losses. 2 Tackling climate damage requires a combination of measures for mitigation, adaptation and compensation. The national policy-makers and legislators possess a wide margin of political discretion with respect to the selection of sectors of the national economy for primary action and the choice of instruments. Guidance for devising the relevant measures may be provided by the fundamental principles of environmental policy that are widely recognized throughout the world. One of these principles is the ‘polluter pays’ principle (PPP). It was formulated when climate change did not yet constitute a major problem on the agenda of environmental policy. However, this does not rule out that it can address new environmental problems such as the consequences of climate change. 1

II. Historical development and state of recognition 1. Historical development 3

According to general conviction1, the OECD Recommendation on the Polluter Pays Principle of 1972,2 which was refined in the following years by two further recommendations,3 constitutes the first recognition of the PPP as a guide principle of environmental policy. Although there have been national predecessors in Japan and Germany,4 1 See, e.g., Schwartz, in: Fitzmaurice/Ong/Merkouris (eds.), Research Handbook on International Environmental Law, 2010, p. 243 (244 et seq.); id., in: Krämer/Orlando (eds.), Principles of Environmental Law, 2019, p. 260 (260‐61); Proelss, in: Aguila/Viñuales, A Global Pact for the Environment – Legal Foundations, 2019, p. 85 (86). 2 OECD, Guiding Principles concerning International Environmental Economic Aspects of Environmental Policies, C (72) 128; cf Bugge, in: van den Berg/Eide (eds.), Law and Economics of the Environment, 1996, p. 54 (72 et seq.). 3 OECD, The Implementation of the Polluter-Pays Principle, C (74) 223; id., The Application of the Polluter Pays Principle to Accidental Pollution, C (89) 99. 4 Japan: Law on Cost Bearing of Pollution Control Public Works of 1970 (Law No. 133/1970); Germany: Umweltprogramm der Bundesregierung, BT-Drucks. VI/2710 (1971), p. 10.

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it is safe to say that the OECD Recommendation of 1972 has been crucial for the gradual recognition of the PPP at national, supranational and international levels. The PPP originally was conceived as an economic principle that was oriented at the concept of internalisation of external costs as developed by the economist Arthur Cecil Pigou (“Pigouvian tax”).5 However, the PPP has gradually evolved to a legal concept. In this process it has undergone important modifications and developed several variants.

2. State of recognition In most countries the PPP is just recognized as a political principle that should be 4 considered in environmental policy-making, legislation and implementation. In this form it constitutes a self-commitment of government that is not legally binding but has a strong political and social authority. However, there are also a number of laws at supranational and national levels that explicitly recognize the PPP or a particular variant of the PPP as a legal principle. In the European Economic Community the PPP was first recognized politically by the Environmental Action Programme of the Commission of 1973 and in particular the Council Recommendation on cost allocation of 19756 which still serves as guidance for interpreting the principle. Since the Maastricht Treaty of 1987, the PPP has been one of the legal principles that have to be applied in environmental policy and legislation of the European Economic Community and later on the European Community and the European Union. It is presently laid down in Art. 191 (2) TFEU. Moreover, there are a number of EU directives addressed to the member states that explicitly refer to the PPP. This is in particular true for the Waste Framework Directive (Art. 14), the Waste Deposit Directive (Art. 10) and the Environmental Liability Directive (Art. 1).7 The Water Framework Directive (Art. 9)8 may be relevant for adaptation to climate damage. The Emission Trading Directive9 which only incorporates the PPP is the most relevant directive with respect to the mitigation of climate damage. At national level, important sources of recognition of the PPP as a legal principle in 5 Europe are the Environmental Code of France (Art. L 110‐1[2]) and the general environmental protection acts of Switzerland (Art. 2) and Portugal (Art. 3[d]). The Portuguese law is most far-reaching. It obliges the polluter to bear the costs of all activities that cause environmental damage as well as the costs of internal measures for the prevention and control of environmental damage. Further examples of legislative recognition of the PPP include Poland, the Belgian Region of Flanders and – in the shape of general duty of due diligence or a duty to remediate or compensate environmental damage – the Netherlands, the Czech Republic and the Belgian Region of Wallonia.10 5 The Pigouvian tax is not uncontroversial among economists. A competing concept is the Coase theorem that defines the problem of pollution as one of a use conflict and considers both the polluter and the victim as originators; see, e.g., Bugge, Law and Economics p. 62 et seq. 6 Commission, Environmental Action Programme, OJ 1973 C 112/1; Council Recommendation 75/436/ EEC of 3 March 1975 regarding cost allocation and action by public authorities on environmental matters, OJ 1975 L 194/1. 7 Directive 2008/98/EC of the European Parliament and the Council on Waste, OJ 2008 L 312/3; Council Directive 1999/31/EC on the landfill of waste, OJ 1999 L 182/1; Directive 2004/35/EC of the European Parliament and the Council with respect to the Prevention and Compensation of Environmental Damage, OJ 2004 L 143/36. 8 Directive 2000/60/EC of the European Parliament and the Council establishing a framework for Community action in the field of water policy, OJ 2000 L 327/1. 9 Directive 2003/87/EC of the European Parliament and the Council establishing a scheme for greenhouse gas emission allowance trading within the Community, OJ 2003 L 275/32, as amended. 10 Poland: Art. 7 of the Environmental Protection Act; Flanders: Art. 1.2.1 [2] of the Decree on Environmental Policy; Netherlands: Art. 1.1a Law on Environmental Policy; Czech Republic: Art. 17 [1], Art. 19 of the Environmental Protection Act; Wallonia: Art. D 3 no. 2 of the Environmental Protection Act.

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Outside Europe, there are also various examples of an explicit recognition of the PPP, even though mostly in the shape of an ex post variant of the PPP. This is true for Japan, Kenya, Brazil, Costa Rica and – based on judicial development of the law – India.11 South Africa and the Canadian Province of Quebec possess more extensive regulation on the PPP. South Africa (Sec. 2 [4] [p] of the National Environmental Management Act) combines an ex ante and ex post version of the PPP imposing the costs for the prevention, control and minimisation of future pollution and for compensation of environmental damage on the originator. Quebec (Art. 6[o] and [p] of the Law on Sustainable Development) adds to its ex ante concept of the PPP a requirement of internalising the external costs of the whole product life cycle, even though only in the shape of a duty of the executive to take into account the PPP. 7 As regards international law, the PPP is neither a principle of customary law nor a general principle of law in the meaning of Article 38 of the Statute of the International Court of Justice. The view expressed by some European regional conventions that the PPP is a general principle of international environmental law,12 does not have sufficient support in state practice and legal literature.13 The PPP has been recognized in various soft law documents, especially Principle 16 of the Rio Declaration on Environment and Development14 and the OECD recommendations on the PPP.15 However, only few global conventions expressly recognize the PPP. The Paris Convention on Climate Change of 2015 does not mention it. By contrast, there are numerous regional environmental agreements, especially in Europe, that affirm the PPP. Many of these agreements just name it in their preamble, whereas others have inserted it in operative provisions on goals, principles or obligations. All told, one can state that in Europe the PPP has a firm legal status. However, it is also true that it lacks universal recognition.16 6

III. Legal nature 1. Principle or rule? 8

The PPP may be simply a political principle that does not have any legal effects. Where the PPP is established by a legal text such as a law or a convention, the denomination of the PPP in the relevant legal text as a “principle”, which is quite common, suggests that the PPP constitutes a principle in the legal sense – as opposed to a rule. It would need strong arguments not to follow this legislative classification. Where the relevant legal text lacks such a denomination, the qualification must be made by way of interpretation. There are a number of criteria to qualify a legal norm as a principle and distinguish it from a rule. These criteria are not uncontroversial and make the 11 Japan: Law on Cost Bearing for Pollution Control Public Works, Law No. 1133/1970; Kenya: Sec. 3 [5] [e] of the Environmental Management and Coordination Act; Brazil: Art. 4 [8] of the Act on National Environmental Policy; Costa Rica: Art. 2 [d] of the Organic Act on the Environment; India: Supreme Court, Vellore Citizens’ Welfare Forum v. Union of India, All India Reports 1996 SC 2715 (leading case). 12 London Convention on Oil Pollution Preparedness, Responsibility and Cooperation of 1990, 30 ILM 733 (1991); ECE Convention on Transboundary Effects of Industrial Accidents of 1992, 31 ILM 1330 (1992) and the associated Liability Protocol regarding the Protection of Transboundary Waters of 2003 (all in the preamble). 13 Proelss, p. 89 with further references. 14 31 ILM 1416 (1992). 15 Supra fns 2 and 3. 16 Proelss p. 89; Sands/Peel, Principles of International Environmental Law, 4th ed. 2018, p. 240‐41 (but see p. 123); contra Schwartz, Principles p. 264; furthermore Indian Supreme Court (fn. 11).

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qualification quite difficult.17 First of all, the function of the norm is relevant. Principles only argue in one direction; they do not determine a particular decision but allow for a plurality of decisions. By contrast, a rule contains a definite command or empowerment.18 Moreover, a high degree of abstractness would suggest a qualification as a principle. Finally, the degree of legal certainty and definiteness plays a role. Where there are many potential variants of substantive content of a legal provision this would speak for qualification as a principle. Most of these criteria are met by the PPP. As a matter of fact, it is the clearly 9 predominant understanding that the PPP is a principle and not a rule.19 The classification of the PPP as a principle implies that a certain degree of balancing divergent values and interests is admissible or even required.20 How far the political discretion reaches, depends on the relevant legal text. The PPP is not necessarily strictly binding, it may be just an approach or a norm of consideration.21

2. Legal effects The PPP may have quite different legal effects. Normally, the PPP is a principle 10 addressed to environmental policy-makers and, where laid down in the Constitution or other higher ranking norm, the legislature. This is the core effect of the PPP. A good example is presented by Art. 191 [2] TFEU. According to this provision, the PPP is one of the principles that apply to environmental policy-making including legislation at EU level. It does not establish an empowerment of the EU institutions to intervene in the activities of individual enterprises or consumers. Nor is it binding on the member states unless incorporated in specific environmental directives. The concentration on policymaking and legislation does not rule out that the PPP could also have effects on the other powers, that is, the executive and judiciary. As regards the judiciary, the PPP may serve as a standard for scrutinizing the legality and guide the interpretation of secondary legislation. This is in particular true where the PPP is laid down in a goals provision of an implementing instrument.22 In the relationship to individual enterprises and consumers, the PPP does not 11 normally have any direct legal effects. Such effects are only triggered when the PPP is incorporated in specific legal norms that are addressed to individuals. For instance under EU law, depending on the wording and objective of a directive that incorporates the PPP and its transposition into national law, individual enterprises and consumers may be obliged or entitled by the PPP. A different problem arises where the PPP is not specifically laid down in an operative 12 provision of an environmental law as a goal or principle, but is only incorporated in the sense that the law refers to it in the preamble or is simply based on it. The relevant law does not require the application of the PPP but only of its rules that are an expression of the PPP. One can denominate this variant of the PPP as a “structural” principle, “guide” 17 See de Sadeleer, Principles of Environmental Law – From Political Slogans to Legal Rules, 2002, p. 251 et seq.; Martin, in: Krämer/Orlando (eds.), Principles of Environmental Law, 2018, p. 13 (14 et seq.); Sands/Peel, p. 199‐201. 18 Dworkin, Taking Rules Seriously, 1977, p. 24, 26; de Sadeleer, Principles p. 273; Martin (fn. 17), p. 17‐18. 19 Contra regarding international law: Proelss, p. 88; Beyerlin/Marauhn, International Environmental Law, 2011, p. 39. 20 de Sadeleer, Principles p. 30‐31, 259, 272‐73; Martin (fn. 17), p. 16. 21 Schwartz, Principles p. 264. 22 ECJ Case C-129/16 Túrkevej Tejtermelö Kft. ECLI:EU:C:2017:547, mns. 36 et seq.; Case C-378/08 ERG ECLI:EU:C:2010:126, mns. 46, 57‐58, 67; Case C- 534/13 Fipa ECLI:EU:C:2015:140, mns. 40‐42; to the same extent de Sadeleer, Principles p. 31.

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principle or – in the case of simple incorporation – an “implicit” principle.23 However, this does not mean that the PPP is just an element of systematic understanding of the law and lacks any legal relevance. Rather, it legitimizes the relevant rules and may guide their interpretation. 13 The PPP in international treaty and soft law may be a legal principle that has to be applied by the parties in implementing a convention. In a softer, more frequently used version the PPP it is just an approach or a duty to consider.24 The latter is in particular true for Principle 16 of the Rio Declaration but also for some regional agreements.25 Where the PPP is only contained in the preamble or a goals provision of the agreement or incorporated without any reference to it, the PPP merely serves as guidance for interpreting the agreement. 14 Normally, the PPP is addressed to the parties to the relevant international agreement and applies to their domestic sphere. In other words, the agreement requires action at domestic level for transposing the PPP, normally with legal effects on enterprises and individuals. It is an open question whether the PPP in its application to the domestic sphere of states also addresses transboundary effects. Some liability conventions regulate transboundary pollution. In any case, the PPP arguably does not mandate the recognition of an extraterritorial duty of originators to protect persons who suffer environmental damage outside the national territory. It does not either legitimize the extraterritorial application of domestic environmental laws to activities of originators performed abroad that cause environmental damage on the national territory (effects principle).26 In both cases, the national and supranational rules on conflict of laws, fundamental rights and customary international law contain more appropriate criteria. This applies in particular to climate damage. As regards imported products, the application of domestic product requirements or charges for climate protection can in principle be justified by the PPP, the limits being set by the WTO regime of international trade.27 15 The PPP may theoretically also apply to the relationship of states to one another. A more recent discussion on this question specifically relates to global climate policy. Some authors posit that the PPP is implicit in the Paris Convention and, in the shape of an obligation to put a price on GHG emissions, even constitutes the lead principle of global climate policy.28 As a pronouncement on existing international law, this is hardly tenable. There are no precedents in treaty law for such a legal effect of the PPP. In particular, the Paris Convention on Climate Change of 2015 does not mention the PPP because there was no agreement on which version of it to accept. The “loss and damage” mechanism under Art. 8 of the Convention is not predicated on the PPP. However, the principle of common but differentiated responsibilities considering respective capabilities (CBDR) has always contained elements of the PPP since it is based on the concept of responsibility, even though not in the form of simple redistribution of costs.29 Therefore, what one should advocate is not so much a key role for the PPP in the 23

Bugge, Law and Economics p. 58, see also de Sadeleer, Principles p. 22; Martin (fn. 17), p. 19‐20. Schwartz, Principles p. 264. 25 E.g., London Dumping Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Waste and Other Matter of 1996, Art. 3 [2], 36 ILM 1 (1997); Carpathians Convention of 2003, Art. 2 [b], www.carpathianconvention.org/the-convention-17.html. 26 See for this problem: Scott, in: Krämer/Orlando (eds.), Principles of Environmental Law, 2018, p. 167 (171 et seq.); Rehbinder, in: Handl/Zekoll/Zumbansen, Beyond Territoriality, 2012, p. 127 (128 et seq., 157 et seq.). 27 See GATT, US – Taxes on Petroleum and Certain Imported Substances, Panel Report of 17 June 1987. 28 Zahar, 9 Climate Law XXX (2019). 29 Bugge, Justice p. 424‐25. 24

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global climate change regime in lieu of the CBDR but, rather, a further development of the CBDR towards strengthening its PPP element and a growing reliance on the PPP in implementing the Convention at national level. Besides, the no-harm principle (principle of prevention) and state liability for wrongful acts including for transboundary environmental harm provide heads of responsibility that are more protective than the PPP and also have the advantage of being more widely recognized.30

IV. Functions 1. Diversity of functions There is no uniform understanding of the PPP. Rather, one can distinguish between a variety of functions not all of which are uniformly laid down in legal texts or accepted by literature. This complicates the framing of and discussion on many subsequent problems associated to the PPP. The oldest function of the PPP is harmonisation of conditions for competition and investment location, that is, abolition of hidden subsidies of polluters, by means of internalisation of environmental externalities. This was the gist of the original OECD and EEC concepts31 but does no longer play a major role. Apart from the harmonisation function, one can distinguish three functions of the PPP: redistribution, prevention and liability.32 In keeping with the denomination as ‘polluter pays’ principle, the major function of the PPP still is the redistribution of external environmental costs. However, the extent of requisite redistribution is an open question. Redistribution may be either required in the sense of complete or at least far-going internalisation. More frequent is the mere allocation of costs for protective measures mandated by environmental regulation to the polluter. Secondly, the PPP has a preventive function. This is even true for redistribution concepts because they count on the preventive effects of such redistribution. The polluter is expected to take preventive measures up to the point where the marginal costs of such measures are below the costs that are redistributed. The preventive function is explicitly addressed as an aspect of the obligation of the polluter to (also) bear the costs of preventive measures required by environmental laws or conventions. Even environmental liability has a preventive function.33 It may either be explicit insofar as the liability regime entails the obligation of the polluter to take preventive measures in case of imminent harm. Or it may be implicit in that the threat of financial responsibility for future environmental damage may serve as an incentive to alter behaviour and abstain from risky activities. In the long run, it may influence the production and consumption patterns. Thirdly, the PPP has a curative function. One can also speak of an ex post version of the PPP. The curative function of the PPP finds expression in environmental liability, 30 Mayer, 5 Climate Law 1 (7 et seq.) (2015); id., 8 Climate Law 261 et seq. (2018); id., The International Law on Climate Change, 2018, p. 69 et seq., 267 et seq. (in favour of an extended no harm principle); see also Kaswan, in: Farber/Peeters (eds.), Climate Change Law, 2016, p. 605 (611‐12); Sands/ Peel, p. 737 et seq., 746 et seq.; contra Zahar, 5 Climate Law 25 (28 et seq.) (2015); id., 8 Climate Law 244 (247 et seq.) (2018). 31 de Sadeleer, Principles p. 34 et seq.; Schwartz, Research Handbook p. 246; but see Kettlewell, 3 Colo. J. Int. Env. L. 129 (445 et seq., 477‐78) (1992) (PPP requires previous harmonisation). 32 de Sadeleer, Principles p. 34 et seq.; Bugge, in: Ebbeson/Okowa (eds.), Environmental Law and Justice in Context, 2009, p. 411 (413). 33 See also Orlando, in: Krämer/Orlando, Principles of Environmental Law, 2018, p. 272 (273‐74, 285).

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irrespective of its classification as private or public law.34 Some authors suggest that environmental liability might not be an expression of the PPP because it is a separate body of norms that follows its own logic.35 However, the systematically separate regulation of environmental liability in environmental codes or international instruments that is quite common does not militate against classifying it as an instrument of the PPP. Other instruments of the PPP are also regulated in detail in separate or separate parts of environmental laws. Moreover, an OECD recommendation36 generally classifies environmental liability as an instrument of the PPP. Finally, some national, supranational and international legal texts expressly refer, with respect to environmental liability, to the PPP.37 All told, there are good reasons for recognizing the curative function of the PPP and thereby environmental liability as an instrument of the PPP.

2. Internalisation vs. instrumental orientation The origin of the PPP in environmental economics suggests that the gist of the PPP should be complete internalisation of external costs that production processes, products and services cause for the public at large in the shape of pollution, other kinds of environmental degradation and personal damage. The logic of the internalisation concept extends to a new phenomenon like climate damage. However, to the extent that the PPP has emancipated from economics and evolved to a legal principle, the internalisation approach has lost much of its persuasiveness. Moreover, due to conceptual problems, practical difficulties and negative distributional effects, internalisation of external environmental costs strictly according to the Pigouvian concept is not possible. At best one can posit that external environmental costs should be allocated to the polluter as fully as feasible and/or reasonable38. In any case, the legislature has political discretion in implementing the PPP. Approaches of partial internalisation that impose on the polluter some external costs in the form of charges shaped according to their expected incentive function, costs of protective measures (e.g., ambient quality and emission standards, best available technology), liability or voluntary self-commitments by industry are also consistent with the PPP.39 21 Looking at state practice, it deserves attention that a rigorous internalisation approach is extremely rare. The relevant laws, if they define the PPP at all, normally only make the polluter bear the costs of measures for the prevention, reduction and control of pollution as required by law.40 The same is true for states that apply the PPP only as a political principle. The PPP is linked to environmental regulation, more exactly to the instruments devised by the state for protecting the environment (“instrumental” approach). Practically the PPP is equivalent to a mere prohibition of state aids. 20

34 de Sadeleer, Principles p. 24, 37, 48 et seq., 53‐58 ; id., in: Backer/Fauchald/Voigt (eds.), Pro Natura, Festskrift til Hans Christian Bugge, 2012, p. 405 (412) ; Schwartz, Research Handbook p. 249, 251 et seq.; Bugge, Law and Economics p. 413, 420 et seq. 35 Proelss, p. 92. 36 OECD, Accidental pollution (fn. 3). 37 Examples: Environmental Management Act of South Africa, Sec. 2 [4] [p]; EU Environmental Liability Directive, Art. 1; Lugano Convention on Civil Liability for Harm Damage Resulting from Activities Harmful to the Environment of 1999, Preamble, CETS 150 (not yet in force); Kiev Protocol on Civil Liability and Compensation for Damage Caused by Transboundary Effects of Industrial Accidents on Transboundary Waters of 2003, Preamble, UNTC vol. XXVII no. 16 (not yet in force). 38 See Bugge, Law and Economics p. 58 et seq., 65 et seq. 39 Schwartz, Principles p. 249‐50, 262, 265, 267; Bugge, Justice p. 246, 249‐50; Proelss, p. 90; Frenz, Das Verursacherprinzip im Öffentlichen Recht, 1997, p. 35 et seq. As to the question whether the PPP requires illegality of an action or omission of the polluter, see (in the negative) de Sadeleer, Principles p. 38 et seq. 40 Exception: Art. 6(p) of the Law on Sustainable Development of the Canadian Province of Quebec.

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However, normally an element of partial internalisation is added in the shape of environmental liability insofar as it does not hinge on administrative regulation. At international level, the understanding of the PPP as a mandate for internalisation 22 of external environmental costs plays a role in soft law declarations on the PPP, especially Principle 16 of the Rio Declaration. However, already the OECD declarations on the PPP had opted for, and later on at least emphasized, an instrumental concept whereby the polluter has to bear the costs for measures of prevention, reduction and control of pollution ordered by the state. Art. 6 of the Draft International Covenant on Environment and Development41 also follows this understanding. The instrumental concept of the PPP reverts in almost all global and regional conventions that contain language about the content of the PPP, be it in the preamble or operative provisions of the agreement.

3. Redistribution of costs vs. material responsibility The PPP is commonly understood as a principle of allocating the costs of pollution or 23 measures mandated by environmental regulation. These costs are to be redistributed from the (potential) victims of environmental damage and/or the state or taxpayers to the polluter. The denomination “polluter pays principle” or “originator pays principle” reflects this understanding, the denomination “originator principle” in Germany, Austria and Switzerland does not exclude it.42 However, with the gradual emancipation of the PPP from economic thinking and its conversion into a legal principle one has to pose the question as to whether the PPP should not be understood in the sense of material responsibility for environmental harm, the redistribution of costs only being one its elements. Such a development of the PPP would more directly link the PPP to the objective of environmental protection.43 Moreover, it would counteract the frequent criticism of the PPP to the extent that it is tantamount to a license to pollute against payment.44 This criticism certainly is overstated because it ignores the (potential) preventive effects of setting an environmental price on production processes, products and services. However, a modernisation of the PPP in the sense of material responsibility would constitute a more direct response to this criticism and would also underline the ethical foundations of the PPP. In European legal literature the position that the PPP is or at least is also a principle 24 of material responsibility is gaining ground.45 A major contribution to this rethinking of the PPP has been made by the recent case law of the European Court of Justice. While older judgements conceived the PPP as a mere principle of redistribution of costs,46 the recent case law on the Environmental Liability Directive emphasizes the primary responsibility of polluters to take measures of their own for prevention and restoration of environmental damage.47 Rather than separating the obligation to take such measures 41 International Union for the Conservation of Nature and Natural Resources/International Council of Environmental Law (eds.), Draft International Covenant on Environment and Development, 5th ed. 2015. 42 See Art. 2 of the Swiss Environmental Protection Act. 43 In this sense regarding liability Orlando, p. 284. 44 See Schwartz, Principles p. 270; Dupuy/Viñuales, International Environmental Law, 2018, p. 82; de Sadeleer, Principles p. 33, 60; id., Pro Natura p. 418. 45 Schwartz, Principles p. 270; id., Research Handbook p. 248; Frenz (fn. 40), p. 27‐28; Epiney, Europäisches Umweltrecht, 4th ed. 2019, p. 166, 382, 614; already Rehbinder, Politische und rechtliche Probleme des Verursacherprinzips, 1973, p. 34 et seq. 46 ECJ Case C-293/97 Standley ECLI:EU:C:1999:215, mns. 51‐52 ; Case C-1/03 Van de Walle ECLI:EU: C:2004:490, mn. 58; Case C-254/08 Futura Immobiliare ECLI:EU:C:2009:479, mns. 44‐46 ; Case C-188/07 Commune de Mesquer ECLI:EU:C:2008:359, mns. 71‐72, 77‐78. 47 ECJ, Túrkevej Tejtermelö Kft. (fn. 22), mns. 47, 53; ERG (fn. 22), mn. 57.

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and that of bearing their costs, the Court sees both as elements of the PPP. This interpretation is mandated by Art. 1 of the Directive that links the material responsibility of polluters to the PPP. It has also found expression in more recent liability conventions which incorporate the PPP.48 25 Material responsibility does not mean that the PPP should become the lead principle of environmental policy including climate protection policy that determines its directions and stringency. It only means that polluters do not only have to pay, but are also responsible for taking measures of prevention, reduction and control. Which measures are required, is not determined by the PPP. In the long history of the PPP, there have always been attempts to revalue the PPP to a material principle that determines the contents of environmental policy on the basis of the internalisation concept. However, this would render the role of the other principles of environmental policy meaningless even though they are more refined than the PPP.

V. Contents and limits 1. Generalities 26

The recognition of the PPP as such only delineates the contours of the principle including its functions. It does not yet determine its exact content. It is generally admitted that the legislature possesses a wide margin of discretion to determine the contents of the PPP with respect to the protected asset (scope of application), the notion of polluter (originator), causation and accountability, the measure, calculation and allocation of relevant costs, the selection of instruments and the delimitation from competing redistribution principles such as the common burden principle.49 This also means that the guidance the PPP may provide is limited. The PPP is mandatory only in its core contents as a prohibition of environmental subsidies and requirement of a basic environmental liability regime. Beyond this hard core, it has legitimizing, directive and interpretative functions. Especially the European Court of Justice has explicitly confirmed that the member states have a wide, even though not unlimited, discretion for implementing the PPP.50 Likewise, principle 16 of the Rio Declaration grants states much latitude in determining the contents and limits of the PPP. The relative indeterminacy and lack of legal certainty of the PPP has been criticised in legal literature51 but is a necessary consequence of its formulation as a principle.

2. Protected assets 27

As its common denomination suggests, the PPP addresses pollution. It is unclear whether climate damage is encompassed since most GHGs do not have hazardous properties but are only liable to cause climate damage through their quantity and accumulation in the atmosphere. Moreover, the PPP seems to exclude the degradation of natural resources through activities other than pollution. However, the narrow wording of the PPP is only due to its historic origin and the environmental problems 48 Annex VI on Liability Arising out of Environmental Emergencies to the Protocol on Environmental Protection to the Arctic Treaty, Art. 5, 45 ILM 5 (2006); also Nagoya Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol on Biodiversity, Art. 5, UNTC Ch. XXVII No. 8c; see Orlando, p. 283‐84. 49 Epiney, p. 166‐67; Beyerlin/Marauhn, p. 59; Dupuy/Viñuales, p. 82‐83. 50 ECJ Cases C-379 and 380/08 ERG/ENI ECLI:EU:C:2010:127, mns. 59‐60, 79, 86; ERG (fn. 22), mns. 55‐59, 64; Futura (fn. 46), mns. 48, 51‐57. 51 Proelss, p. 90; but see de Sadeleer, Principles p. 33, 60; id., Pro Natura p. 418‐19.

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that were on the agenda of environmental policy at the time when the basic concepts of the PPP were developed. There are no cogent arguments that militate against a dynamic interpretation whereby the PPP covers any activity that contributes to the deterioration of the environment.52 Even the ‘user pays’ principle that concerns potentially harmful use of natural resources can be understood as a variant of the PPP.53 Climate damage can already be denoted as a special form of pollution through quantitative impact. Even though this is not true for environmental degradation, what ultimately counts is not the mode of action but the effect on the environment. In this vein, some national laws explicitly include environmental degradation in the scope of application of the PPP,54 whereas, as far as can be seen, climate damage is not expressly covered anywhere. As regards treaty law that recognizes or incorporates the PPP, climate damage is 28 normally not directly encompassed. In particular, conventions that address certain kinds of pollution or accidents cannot normally be interpreted so as to comprise the emission of GHGs. However, there are exceptions. When a rise of the sea level, extreme weather conditions, floods or landslides associated with global warming cause environmental degradation or accidents that are encompassed by a particular convention, climate damage may fall under the convention. An indispensable condition is that a concrete causal link between the emission of GHGs, global warming and such occurrences can be established in a form that satisfies the requirements of the convention, for instance even by virtue of the precautionary principle. In the field of environmental liability, stricter causal requirements apply. A clear case of coverage of climate damage are agreements that aim at the conservation of nature and apply to all forms of environmental degradation.55 The same is true for conventions with a spatial protective approach such as the Alps Convention56 and the Carpathians Convention57. The objective of these conventions to promote sustainable development also encompasses the prevention, reduction or remediation of climate damage and adaptation to climate change. This has been clarified by the new Art. 12bis of the Carpathians Convention. Moreover, the extent of protection of the relevant assets may raise doubts. The 29 notions of pollution, environmental degradation and climate damage seem to imply that there is a threshold of insignificance below which environmental regulation under the PPP may not reach.58 In the same direction, one may invoke the constitutional protection of economic interests of potential originators. However, due account must also be taken of the precautionary principle so that, depending on the concrete field of regulation, also potential risks to the environment may be subject to regulation according to the PPP.

3. Identification of the polluter (originator) The determination of the polluter (or originator) who is held responsible raises 30 complex problems.59 It is recognized that the legislature has a wide margin of discretion in the choice of the entity that has to bear the costs of pollution or undertake protective 52

Schwartz, Principles p. 262; id., Research Handbook p. 247 et seq.; de Sadeleer, Principles p. 42. OECD, Recommendation of the Council on the Use of Economic Instruments in Environmental Policy, C (90) 177; Schwartz, Research Handbook p. 248. 54 E.g., Art. 1386‐20 French Code Civil; Sec. 2 [4] [p] of the National Environmental Management Act of South Africa. 55 Example: ASEAN Convention on Conservation of Nature of 1985, Art. 10(d), 15 EPL 64 (1985). 56 Convention on the Protection of the Alps of 1991, 1917 UNTS 135 (1992). 57 See supra (fn. 25). 58 Bugge, Justice, p. 420‐21; contra de Sadeleer, Principles p. 41 (matter of legislative choice). 59 Schwartz, Research Handbook p. 248; Bugge, Law and Economics p. 67 et seq.; de Sadeleer, Principles p. 40 et seq.; id., Pro Natura p. 410‐11, 414 et seq. 53

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measures at its own expense. The selection of the polluters that incur responsibility must in principle be based on the same criteria as are recognized for the selection of instruments of environmental policy in general. Effectiveness, efficiency, contribution to innovation, possibility of identification, administrative feasibility, distributive justice and expectation of voluntary compliance will play a role. The limits of the discretion of the legislature to specify the PPP are set by the requirement of causation.60 31 In case of vertical causal chains each actor in a value and distribution chain is a potential addressee. The operator of a polluting facility, the manufacturer of a product, the transporter, the sender, the generator and possessor of waste and even the consumer are in principle suitable actors to be charged with responsibilities under the PPP. Manufacturers may also be held responsible for environmental damage that occurs at the end of the chain. An example is extended producer responsibility whereby the manufacturers of a product are responsible for waste problems that arise at the end of the chain and which they can avoid or mitigate by proper design of the product or taking back the waste.61 This post-consumption responsibility could also be extended to product-related climate damage. Another example for dealing with vertical causal chains is the responsibility for contaminated sites or waters. The US Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)62 extends responsibility to the waste generator, transporter and operator of a disposal facility. Under EU waste law preceding the Environmental Liability Directive, environmental responsibility could be incurred by a variety of actors such as the holder and previous holder of waste, the waste generator, the seller of products or transported materials and the owner of a carrier.63 By contrast, in the application of the German laws that have transposed the EU Environmental Liability Directive, German administrative courts in principle require direct causation. Indirect originators are only responsible where their action or inaction of necessity leads to environmental damage.64 32 A particular problem of the PPP is the treatment of very small polluters. A general de minimis exception would not be appropriate. Rather, it depends on the context of regulation and liability and the possibility to identify the polluters and their contribution whether and to what extent minimal contribution is included. Thus, it is a matter of course that consumers may be suitable addressees of environmental obligations that relate to their day-to-day activities even though their individual contribution to the environmental problem will normally be very small. They can at least be held responsible for complying with administrative regulation or payment of charges in their capacity as members of a particular target sector of the economy such as buildings and traffic.

4. Causation and accountability 33

As stated, causation is an essential prerequisite of applying the PPP (mns 30‐31). However, states have a wide margin of latitude to determine the requirements of causation in detail, both with respect to substantive prerequisites and proof, and this 60 ECJ, Standley (fn. 46), mns. 51‐52 ; Futura (fn. 46), mns. 44‐46, 48, 52‐55; ERG (fn. 22), mns. 52 et seq.; Commune de Mesquer (fn. 46), mns. 71‐72. The responsibility of the (innocent) landowner cannot be based on the PPP; ECJ, Túrkevej Tejtermelö Kft. (fn. 22), mns. 56 et seq.; Fipa (fn. 22), mns. 59, 63. 61 Schwartz, Research Handbook p. 248. 62 Sec. 106, 107 CERCLA, as amended by the Superfund Amendments and Reauthorization Act (SARA). 63 ECJ, Futura (fn. 46), mns. 44‐46, 48, 52‐55; Case C-104/17 SC Cali Esprou ECLI:EU:C:2018:188, mns. 23, 29‐34; Commune de Mesquer (fn. 46), mns. 77‐78, 82; Van de Walle (fn. 46), mns. 58‐60; less extensive Art. 15 Directive in waste (fn. 7); see de Sadeleer, Pro Natura p. 414 et seq. 64 Administrative Court of Appeal Munich, decision of 15 May 2018, 22 CS 18.566, Neue Zeitschrift für Verwaltungsrecht – Rechtsprechungsreport 2019, 10 mn. 22 with further references.

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determination will be largely context-dependent. Causation deduced from natural science and logics (theory of “equivalence of conditions”) will normally be attenuated by considerations of accountability. Besides direct causation also indirect causation may be relevant. Considerations of accountability, especially in the law of environmental liability, may suggest some restraint in holding indirect originators responsible for environmental damage that arises outside of their control. In environmental regulation or taxation uncertainty about causation is a factor that has to be considered in balancing the interests concerned using the normal criteria for the choice of instruments of environmental policy. Considerations of the kind that underlie the precautionary principle may be relevant in the selection of responsible actors from a group of actors whose causal contribution in unclear but where there are science-based reasons to assume that they did contribute. In the field of environmental liability uncertainty may be tackled by application of the relevant rules on evidence. Here, a variety of solutions are possible, ranging from the requirement of judicial conviction close to certainty, prevailing probability, prima facie probability to a rebuttable presumption of causation.65 Joint causation of environmental damage by numerous actors is quite frequent. None 34 of the originators can escape liability by referring to another originator. A de minimis exception is acceptable in order to avoid an excessive attribution of liability to actors with a minimal, unidentifiable contribution. However, it has been held that a contribution of 0.47 % to the total worldwide emissions of GHG equivalents does not necessarily fall under the de minimis exception as long as the liability only is pro rata.66 As regards the kind of liability, for reasons of distributive justice the basic rule should be partial liability according to the individual share of the actor in the damage and joint and several liability only in case where this share is unidentifiable. The interest in ensuring effectiveness of environmental protection through liability justifies the imposition of the burden of proof for identification on the relevant actors.67 However, especially under administrative liability regimes, there even is a clear preference for joint and several liability in all cases of common causation. When several or even a multitude of polluters may contribute to future environ- 35 mental damage in a way that their individual contribution cannot be identified, a collective variant of the PPP whereby all polluters are responsible for collective risk creation arguably is consistent with the logic of the PPP. This may justify the establishment of funds for remediation and compensation of widespread and diffuse environmental damage that are financed by all (potential) originators on the basis of flat rates. Examples are the existing insurance-like compensation funds for marine pollution damage.68 However, arguably the boundaries of the PPP are crossed when, as in the case of some compensation funds for historic soil and water pollution, present polluters have to pay for past damage they did not contribute to.69

5. Delimitation from the common burden principle The PPP is not absolute. There may be situations where its application is unfair or 36 unjust. This may be due to unreasonable economic or social consequences for industry and consumers. Examples are problems of industry with transition to new requirements 65

See ECJ, decisions cited in fn. 60. Oberlandesgericht Hamm, Decision of 30 November 2017 – I-5 U 15/17, Lliuya vs. RWE, Zeitschrift für Umweltrecht 2018, p. 118. 67 Cf ECJ, Standley (fn. 46), mns. 51‐52. 68 See Sands/Peel, p. 781 et seq., 793; Wolfrum/Langenfeld, Environmental Protection by Means of International Liability Law, 1999, p. 11‐12, 26 et seq., 96; Orlando, p. 277, 286. 69 ECJ, Futura (fn. 46), mns. 44‐46; Frenz (fn. 39), p. 249 et seq. 66

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or discriminatory financial burdens of environmental taxes on poor consumers.70 In such cases the common burden principle may apply. This principle means that the financial burdens of preventing, reducing or controlling pollution, climate damage or other kind of environmental degradation are allocated to the state and in the ultimate result to the taxpayer.71 According to the general opinion the application of the common burden principle must be a limited exception to the PPP. All soft law documents on the PPP share this rule-exception position.72 In the EU, there even is a general prohibition of state aids that is only subject to limited exceptions (Art. 107‐109 TFEU). However, in the practice state aids for industry in the field of environmental protection are more frequent than one would expect against the backdrop of the ruleexception paradigm. They are especially granted for facilitating the adjustment to new requirements, providing an incentive for voluntary measures and supporting small and medium-sized industry.73

VI. Instruments 1. Generalities There is much disagreement as to the question which kind of instruments are mandated by, or at least consistent with, the PPP. The reason is, at least primarily, a different understanding of the PPP itself.74 Adherents of the (modified) internalisation concept tend to consider economic instruments as the only or at least as key instruments of the PPP principle because these instruments are deemed to embody a major degree of redistribution of external environmental costs.75 Examples are in particular charges, taxes and emission trading. However, it is an illusion to assume that economic instruments necessarily lead to a complete or far-going internalisation. Charges and taxes are a global means of reaching a specific environmental target that is not necessarily equivalent to tolerable pollution.76 For instance, in climate policy charges and taxes are advocated for reaching the 2° or 1.5° target of global warming laid down in the Paris Agreement. This target falls short of entailing complete redistribution of external costs. It is more or less a means of crisis management. Similar objections may be raised with respect to emission trading, the alternative instrument of choice discussed in the debate on climate policy. One has to admit that the “right” price of pollution that should be the basis for setting the rate of environmental charges and taxes or should be expressed in the price of initial allocation of allowances to emit GHGs is unknown. 38 Following the instrumental understanding, all instruments that lead to some redistribution of environmental costs to the polluter are consistent with the PPP. This means 37

70

See Bugge, Justice p. 415 et seq., 421‐22. Especially in environmental liability, also the beneficiary pays principle may be applicable whereby for reasons of fair distribution of costs and benefits, the potential victim has to bear the costs of protective measures or part of them; see Bugge, Justice p. 420‐21; id., Law and Economics p. 72‐73; Schwartz, Research Handbook p. 248. 72 See, e.g., OECD, Implementation of the PPP (fn. 3), II.2. 73 See as to the EU: Commission Regulation (EC) No 800/2008 of 6 August 2008 declaring certain categories of aid compatible with the common market in application of Articles 87 and 88 of the Treaty, OJ 2008 L 214/3; Commission, Community guidelines on state aid for environmental protection, OJ 2008 C 82/1. 74 See Schwartz, Principles p. 265 et seq.; id., Research Handbook p. 249 et seq.; de Sadeleer, Principles p. 44 et seq. 75 Schwartz, Principles p. 265‐66, 269. 76 Cf Dupuy/Viñuales, p. 82; Proelss, p. 91 who both suggest that the PPP should not at all be applicable where significant pollution remains. 71

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that besides market-based instruments also instruments of administrative regulation such as prohibitions, permits, ex post interventions and criminal sanctions and moreover liability are consistent with the PPP provided that the complete costs of the requisite measures be borne by the polluter. The extent as to which external environmental costs are internalised depends on the direction and stringency of the relevant environmental policy and is not predetermined by the PPP. However, more complete, that is, far-reaching redistribution of external environmental costs should be recognized as an objective of responsible environmental policy and always considered in devising the relevant instruments.77

2. Liability in particular Depending on the shape of the relevant cause of action, environmental liability may 39 be an important or less important instrument of the PPP. It often exercises a supplementary function in relation to administrative regulation and even economic instruments and may fill at least part of the “internalisation gap” left by these instruments. Liability for environmental harm exists to a confusing extent of variation. In particular, the grounds of liability may be objective causation (strict liability), objective causation mitigated by a permit defence or fault (including negligence). Liability may be general or special for environmental and related personal damage. Pure ecologic damage to unowned natural assets that cannot be restored, replaced or substituted does not normally give rise to monetary compensation.78 In an extended form, liability also includes liability of several (potential) polluters through insurancelike compensation funds. Under a historical perspective, traditional liability for tort or nuisance and in 40 particular fault-based liability as applicable to environmental damage cannot be deemed to be an expression of the PPP. However, this does not rule out that, against the backdrop of modern developments, one can read the PPP into traditional causes of action, at least in the sense that they objectively serve as an instrument of the PPP. This includes fault-based liability.79 The contrary view neglects that even strict liability is not equivalent to complete internalisation. Moreover, Art. 3 [1] [b] ELD supplements strict environmental liability for listed activities by a general fault-based liability for biodiversity damage. By virtue of an explicit reference to the PPP, it classifies fault-based liability as an expression of the PPP.80 What one can concede, though, is that strict liability provides a more effective protection of the environment and a higher degree of redistribution and should therefore be given preference.81 Although there are not normally any special liability rules on climate damage, 41 “general” environmental liability may be an instrument for dealing with it. This is clear where the relevant cause of action covers environmental damage in general. Where the environmental assets protected are enumerated in definite terms, climate damage may or may not fall under one or several of these assets. For example, the EU Environmental Liability Directive is limited to biodiversity, water and soil damage. Climate damage may be covered where it can be proved that concrete damage to these protected assets is an indirect consequence of global warming as caused by GHG emissions.82 As a fallback position, one can always take recourse to the protection of human life, health and 77

de Sadeleer, Principles p. 51‐52; Bugge, Justice p. 427. Limited exceptions: Sec. 2706 [d] OPA; Sec. 107 [f] CERCLA. 79 de Sadeleer, Principles p. 49‐50 ; contra: Schwartz, Principles p. 267. 80 To this extent also ECJ, Túrkevej Tejtermelö Kft. (fn. 22), mns. 49‐50. 81 de Sadeleer, Principles p. 51; Lugano Convention (fn. 37), Preamble. 82 To this extent regarding air pollution: ECJ, Túrkevej Tejtermelö Kft. (fn. 22), mns. 39 et seq. 78

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42

43

44

45

property in land on the basis of traditional causes of action like tort and nuisance. International liability agreements do not either directly apply to climate damage but may be applicable when environmental degradation or accidents encompassed by a particular convention are an indirect consequence of GHG emissions (see mn. 28). However, given the present state of climate science, the proof of causation between an activity leading to climate change and a concrete damage will pose considerable and sometimes even unsurmountable problems. Moreover, practical limits to an extensive interpretation of the relevant causes of action may result from the usual exception clauses whereby damage caused by “a natural phenomenon of an exceptional, inevitable and irresistible character” does not give rise to liability.83 Environmental liability mostly arises under private law and thereby shares the shortcomings of private law, especially the dependence on the willingness and ability of the victims to go to court, the normal or at least primary concern with individual victims, the problems of the requisite proof of causation and the cost risk. However, private-law causes of action may also include entitlements of the state in its capacity as “trustee” for unowned natural resources. Thereby they confer to the state claims for compensation of expenses it has incurred for restoration, replacement and substitution of ecological damage. This is a first, but important step of recognizing ecological damage in its own right. Some national laws and many liability conventions including those that expressly refer to the PPP proceed in this manner. More recently, administrative liability for historic or present environmental damage has been on the ascendency, both in national and supranational law and under more recent international liability agreements.84 In administrative liability systems, the competent authorities play a major role. They may order the polluters to implement their obligation to prevent imminent damage and remediate existing damage, but in case of non-compliance or for reasons of administrative expediency the authorities may – and normally will – assume the task of carrying out remediation in lieu of the polluters. Then the costs of the relevant measures have to be borne by the polluters. The choice of administrative environmental liability is primarily motivated by the complexity of the environmental or health problem. The determination of the kind and degree of pollution, the choice of the actors to be held responsible, difficulties in determining causation and the complexity of clean-up, restoration, replacement or substitution speak for an administrative problem management. Moreover, the public interest in effective remediation of contaminated sites or compensation of numerous victims justifies administrative liability.

VII. Conclusion 46

The PPP is widely recognized at national, supranational and international levels as a political and even legal principle for allocating the costs of environmental protection, according to a minority position also as a principle of material responsibility for environmental harm. However, the guidance the PPP may provide for dealing with climate damage is limited. There is no uniform understanding of the legal effects and contents of the PPP. It is mandatory only in its core content as an obligation of the originator to bear the costs of measures for the prevention, reduction and control of pollution or environmental degradation ordered by the state (practically: a mere 83

See, e.g., Art. 4 [1] [b] ELD; Kiev Industrial Accidents Protocol, Art. 4[2] [a], supra fn. 37. See Orlando, p. 280 et seq., 283 et seq.; in addition see the Japanese Pollution-Related Health Compensation Law (Law No. 111/1973). 84

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prohibition of environmental subsidies). In addition, there may be a requirement of a basic environmental liability regime. Beyond this hard core, the legislature possesses a wide margin of political discretion for implementing the PPP. To this extent, the PPP only has legitimizing, directive and interpretative functions. Despite these limitations, the value of the PPP for addressing climate damage lies in the option to posit, for instance by way of an interpretation of existing law in conformity with the PPP, that external environmental costs should be allocated to the polluter as fully as feasible and/ or reasonable. As regards the international level, a strengthening of the PPP element inherent in the principle of common but differentiated responsibilities would be a promising way forward. Liability for climate damage is an instrument of the PPP. Weaknesses of such liability 47 under existing law lie in the fact that there are no specific causes of action and coverage of climate damage is a matter of interpretation. Moreover, in climate damage litigation the requisite proof of causation will pose enormous, often unsurmountable difficulties. It must also be considered that liability has its limits in situations of global-scale harm such as climate damage caused by a huge plurality of actors with often tiny causal contributions.85 Collective forms of financing and coordinated action of the international community for reversing negative trends and undertaking effective restoration of damaged natural resources may be a better response to the existing challenges. 85

Orlando, p. 285‐86; see also Gaines, 26 Tex. Int. L. J. 463 (487, 494) (1991).

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Part 1. Fundamental questions Frank, The International Law Association’s Legal Principles on Climate Change and Climate Liability under Public International Law, 4 Climate Law 201 (2014); Setzer/Nachmany, National Governance, in: Jordan/ Huitema/van Asselt/Forster (eds.), Governing Climate Change, Cambridge University Press 2018, p. 47; Spijkers, The Urgenda case: A Successful Example of Public Interest Litigation for the Protection of the Environment? in: Voigt/Makuch (eds.), Courts and the Environment, Edward Elgar Publishing 2018, p. 305; Stephens, Environmental principles and the International Court of Justice, in: Krämer/Orlando (eds.), Principles of Environmental Law, Elgar Encyclopedia of Environmental Law Vol. VI, Edward Elgar Publishing 2018, p. 557; Strauss, Climate Change Litigation: Opening the Door to the International Court of Justice, in: Burns/Osofsky (eds.), Adjudicating Climate Change, Cambridge University Press 2009, p. 334; Sunstein, Of Montreal and Kyoto: A Tale of Two Protocols, 31 Harv. Envtl. L. Rev. 1 (2007); Tava, The Role of NonGovernmental Organisations, Peoples And Courts In Implementing International Environmental Laws, in: Alam/Bhuiyan/Chowdhury/Techera (eds.), Routledge Handbook of International Environmental Law, Routledge 2013, p. 123; Verheyen/Zengerling, International Dispute Settlement, in: Carlarne/Gray/Tarasofsky (eds.), The Oxford Handbook of International Climate Change Law, Oxford University Press 2016, p. 417; Viñuales, The Contribution of the International Court of Justice to the Development of International Environmental Law: A Contemporary Assessment, 32 Fordham Int’l L.J. 232 (2008); Voigt, Introduction. International Courts and the Environment: The Quest for Legitimacy, in: Voigt (ed.), International Judicial Practice on the Environment, Cambridge University Press 2019, p. 1; Voland, Zur Reichweite von Menschenrechten im Klimaschutz, NVwZ 114 (2019); Wegener, Urgenda – Weltrettung per Gerichtsbeschluss? ZUR 3 (2019); Winkler/Zeccola/Willing, Die Folgen eines legislativen und exekutiven Vakuums am Beispiel der Fahrverbots-Rechtsprechung, DVBl. 76 (2019); Winter, Armando Carvalho et alii versus Europäische Union: Rechtsdogmatische und staatstheoretische Probleme einer Klimaklage vor dem Europäischen Gericht, ZUR 259 (2019); Winter, The Paris Agreement: New Legal Avenues to Support a Transboundary Harm Claim on the Basis of Climate Change, in: Voigt (ed.), International Judicial Practice on the Environment, Cambridge University Press 2019, p. 188; Zahar, International Climate Change Law and State Compliance, Routledge 2015; Zahar, The Climate Change Regime, in: Alam/Bhuiyan/Chowdhury/ Techera (eds.), Routledge Handbook of International Environmental Law, Routledge 2013, p. 349.

Contents I. Introduction: the judicialization of climate change governance .......... II. Analysis: structures of judicial involvement in climate protection ..... 1. Venues........................................................................................................... 2. Protagonists.................................................................................................. 3. Goals .............................................................................................................. a) Mitigation governance ......................................................................... b) Mitigation regulation............................................................................ c) Mitigation of specific emissions......................................................... d) Adaptation .............................................................................................. e) Compensation ........................................................................................ f) Auxiliary litigation ................................................................................ III. Contextualization: factors influencing the role of courts ...................... 1. Procedural rules and the competences of courts ................................ 2. Substantive law and the legal order in general.................................... 3. Political and social environment............................................................. IV. Evaluation: the legitimate functions of courts in climate protection.. 1. Climate change litigation between law and politics ........................... 2. The suitability of judicial engagement with climate change............. 3. The effectiveness of climate change litigation...................................... V. Conclusion: potential and limitations of judicial climate protection..

1 4 5 8 10 11 12 13 14 15 16 17 18 21 25 27 28 32 34 36

I. Introduction: the judicialization of climate change governance 1

“Climate Change is a defining challenge of our time and has led to dramatic alterations in our planet’s climate system. For Pakistan, these climatic variations have primarily resulted in heavy floods and droughts, raising serious concerns regarding water and food security. On a legal and constitutional plane this is clarion call for the protection of fundamental rights of the citizens of Pakistan, in particular, the vulnerable 64

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and weak segments of the society (…)”. These words do not stem from a political speech, a journalistic comment or a parliamentary discussion. They are part of the reasoning of the Lahore High Court in the Leghari decision issued in 2015. In this case the Pakistani Court held that the “delay and lethargy” of the government to implement its national climate change policy amounted to a violation of the constitutionally guaranteed right to life.1 The Court went on to order specific and far-reaching measures, including the establishment of a Climate Change Commission to facilitate the implementation of Pakistan’s climate change policy framework.2 The Leghari decision constitutes but one of numerous proceedings in which courts 2 around the world addressed the issue of climate change over the last years. Among the landmark cases is the 2007 decision of Massachusetts v. EPA, in which the U.S. Supreme Court held that the Environmental Protection Agency had the authority to regulate greenhouse gases under the U.S. Clean Air Act.3 In 2008, an attempt by the NGO Friends of the Earth to compel the Canadian government to comply with its greenhouse gas reduction goals under the Kyoto Protocol failed.4 In 2015, the Hague District Court held in the Urgenda case that the government’s emission reduction targets were insufficient and violated the duty of care under Dutch law and therefore ordered the Dutch government to take action in order to ensure that emissions in the year 2020 will be at least 25 % lower than those in 1990.5 Other spectacular cases are pending, such as the case of Juliana v. United States, brought in the District Court of Oregon by a number of young plaintiffs claiming a violation of their fundamental rights due to the failure of the government to adequately regulate greenhouse gas emissions. The Court denied a motion to dismiss, thereby letting the case move forward.6 In Germany, the Peruvian farmer Saul Luciano Lliuya brought suit in civil court against the electricity producer RWE for the company’s contribution to climate change.7 A complaint brought by an alliance of NGOs and individuals arguing that Germany’s insufficient climate change policy is unconstitutional is pending before the Constitutional Court.8 Within the European Union, plaintiffs brought suit against the EU legislature in the Carvalho case arguing that the measures taken by the EU to mitigate greenhouse gas emissions are insufficient and violate fundamental rights.9 In 2019, the General Court deemed the

1 Lahore High Court, Order of 4 September 2015, W.P. No. 25501/2015, Ashgar Leghari v. Federation of Pakistan. 2 See also Lahore High Court, Order of 14 September 2015, W.P. No. 25501/2015, Ashgar Leghari v. Federation of Pakistan; Lahore High Court, Judgement of 25 January 2018, W.P. No. 25501/2015, Ashgar Leghari v. Federation of Pakistan. 3 U.S. Supreme Court, Massachusetts v. EPA, 549 U.S. 497 (2007). 4 Federal Court, Friends of the Earth v. Canada, 2008 FC 1183 [2009] 3 F.C.R. 201. The decision was upheld in Federal Court of Appeal, Friends of the Earth v. Canada (Environment), 2009 FCA 297 (CanLII). An application for leave to appeal was dismissed by the Supreme Court, Friends of the Earth – Les Ami(e)s de la Terre v. Minister of the Environment and Governor in Council, 2010 CanLII 14720 (SCC). 5 District Court of the Hague, Judgment of 24 June 2015, C/09/456689/HA ZA 13‐1396, Urgenda Foundation v. the State of the Netherlands (Ministry of infrastructure and the environment); upheld by Court of Appeal of the Hague, Judgment of 9 October 2018, C/09/456689/HA ZA 13‐1396, Urgenda Foundation v. the State of the Netherlands (Ministry of infrastructure and the environment) “and Supreme Court of the Netherlands, Judgment of 20 December 2020, 19/00135, The State of the Netherlands v. Urgenda Foundation.” 6 U.S. District Court for the District of Oregon Eugene Division, Juliana et al. v. United States of America et al., Order of 10 November 2016, 217 F.Supp. 3d 1224 (D. Ore. 2016). 7 The Regional Court Essen dismissed the case in 2016 (Judgment of 15 December 2016, 2 O 285/15), the appeal is still pending before the Higher Regional Court Hamm (5U 15/17). 8 See Kahl/Daebel, EEELR 2019, 67. 9 See Savaresi/Auz, Climate Law 9 (2019), 244 (256‐258); Winter, ZUR 2019, 259.

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case to be inadmissible.10 An appeal is pending before the European Court of Justice. Looking again beyond the Western world, the Supreme Court of Colombia issued a landmark judgment in 2018, ruling that the Colombian authorities had failed to protect the Amazon region from deforestation, in a decision based not only on considerations regarding international law and fundamental rights but also the rights of future generations.11 3 These cases, which are preceded and accompanied by countless other attempts to bring climate change before the courts, show that climate change is increasingly an issue dealt with in judicial proceedings. With the rising awareness for the devastating consequences of climate change, caused to a significant degree by man-made greenhouse gas emissions, for the urgency of effective climate protection measures and with the increase of strategic litigation brought by environmental NGOs, it does not seem far-fetched to suspect that we have only witnessed the timid beginnings of climate change litigation on a global scale. Against this background, the question of the appropriate role of courts within the multilevel polycentric network of climate protection arises.12 While some view courts as effective and legitimate instruments contributing to the protection of the global climate others, criticize the focus on judicial solutions, deeming courts to be unsuitable and not legitimized to combat climate change. While, of course, every case is different and climate change litigation takes place within different legal systems and settings, the question of the appropriate role of courts in climate protection can nonetheless be addressed in a conceptual manner, taking into account the practice of courts as well as the general position of courts within a constitutional order. I will proceed by addressing three consecutive questions: What role do courts play in climate protection and what role could they play (II.)? What are the factors within and outside of the legal system that influence the role of courts in this regard (III.)? And how is the role of courts in climate protection to be evaluated, in particular in light of the separation of powers (IV.)?

II. Analysis: structures of judicial involvement in climate protection 4

Climate change litigation can take place and has already taken place before different international, regional and domestic courts (1.), involve different parties and other actors (2.) and pursue different goals (3.).

1. Venues 5

While questions of international environmental law in general have increasingly been brought before courts on the global level, cases directly addressing climate change have until now not been dealt with by international courts.13 The International Court of Justice, for example, has not dealt with climate change directly, but has contributed to 10

ECJ, Case T-330/18, Order of 8 May 2019, Carvalho et al. v. European Parliament and Council. Supreme Court of Colombia, Judgment of 5 April 2018, Case No. STC4360‐2018; see Acosta Alvarado/Rivas-Ramírez, J. Envtl. L. 30 (2018), 519. 12 The focus is accordingly on proactive climate litigation aimed at advancing climate protection goals, not on reactive litigation aimed at opposing such change. On this differentiation see Savaresi/Auz, supra (fn. 9), 246; for a more complex typology Ghaleigh, Climate Law 1 (2010), 31; for an empirical analysis Markell/Ruhl, Fla. L. Rev. 64 (2012), 15. 13 Verheyen/Zengerling, in: Carlarne/Gray/Tarasofsky (eds.), The Oxford Handbook of International Climate Change Law, 2016, 417 (421); Sands, J. Envtl. L. 28 (2016), 19 (23). 11

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the development of international environmental law in other ways:14 It has recognized an obligation of states to ensure that activities within their jurisdiction and control respect the environment of other states or of areas beyond national control,15 accepted that concerns for the environment can constitute essential interests under the defence of necessity,16 and recognized the requirement to undertake an environmental impact assessment in case of significant transboundary risk to the environment.17 In 2018, the Court also ruled for the first time on a claim for compensation between states for environmental harm.18 While the Court has overall been rather timid in dealing with environmental questions,19 it has the potential to address some of the more pertinent international legal issues surrounding climate change either through a contentious case brought by a state against another state or through an advisory opinion upon a request by the General Assembly, the Security Council or other UN institutions authorized by the General Assembly.20 Due to its general jurisdiction, the ICJ can potentially adjudicate any question involving the international legal rules on climate protection and substantiate the obligations of states, determine the rules of responsibility for climate change or hold individual states or groups of states accountable for impairments of the climate.21 Deliberations in this direction have already been undertaken, with Tuvalu in 2002 considering to bring a claim against the United States and Australia22 and Palau unsuccessfully petitioning the UN General Assembly in 2011 to request an advisory opinion of the ICJ regarding the responsibility of states to prevent damage caused by climate change.23 Similarly, the International Tribunal for the Law of the Sea could, within its more limited jurisdiction ratione materiae, adjudicate climate change cases either through contentious litigation between the parties to the UN Convention on the Law of the Sea or through an advisory opinion.24 Other possible international dispute-settlement venues for climate change litigation include the dispute-settlement mechanism established within the WTO.25 And while there have been instances of international arbitration in front of ICSID tribunals as well as the Permanent Court of 14 See Fitzmaurice, in: Tams/Sloan (eds.), The Development of International Law by the International Court of Justice, 2013, 353; Stephens, in: Krämer/Orlando (eds.), Principles of Environmental Law, 2018, p. 557; Viñuales, Fordham Int’l L.J. 32 (2008), 232. In 1993, the ICJ established a Special Chamber for Environmental Matters under Art. 26 (1) ICJ Statute but chose not to reconstitute it in 2006 since parties did not exercise the option to have their case decided by the chamber. 15 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, 226 (241‐242). 16 ICJ, Gabčikovo-Nagymaros Project (Hungary/Slovakia), Judgment, ICJ Reports 1997, 7 (41). 17 ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, ICJ Reports 2010, 14 (82‐ 83); ICJ, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua) and Construction of a Road in Costa Rica along the San Juan River (Nicaragua v. Costa Rica), Judgment, ICJ Reports 2015, 665 (706‐707). 18 ICJ, Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation owed by the Republic of Nicaragua to the Republic of Costa Rica, Judgment of 2 February 2018. 19 See Stephens, supra (fn. 14), 557; Fitzmaurice, supra (fn. 14), 353. 20 See Strauss, in: Burns/Osofsky (eds.), Adjudicating Climate Change, 2009, 334 (338‐350). 21 On possible contributions of the ICJ Sands, supra (fn. 13), 19; Strauss, supra (fn. 20), 350‐356; Korman/Barcia, Yale J. Int’l L. Online 37 (2012), 35; Winter, in: Voigt (ed.), International Judicial Practice on the Environment, 2019, 188. 22 See Jacobs, Pac. Rim L. & Pol’y J. 14 (2005), 103; Chang, in: Yeh (ed.), Climate Change Liability and Beyond, 2017, 139 (150‐152). 23 See Korman/Barcia, supra (fn. 21), 35. 24 See Sands, supra (fn. 13), 27‐34; Verheyen/Zengerling, supra (fn. 13), 429‐433; on the environmental jurisprudence of the ITLOS Proelss, in: Krämer/Orlando (eds.), Principles of Environmental Law, 2018, p. 568. 25 Verheyen/Zengerling, supra (fn. 13), 435‐437.

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Arbitration in which corporations challenged regulatory climate protection measures,26 an ICSID tribunal in 2017 ordered a mining company to pay compensation for environmental damages to Ecuador.27 6 At the regional level, human rights courts have also begun to address climate change.28 Within the Inter-American system of human rights protection, the Inter-American Commission on Human Rights, however, refused to hear a petition filed in 2005 on behalf of the Inuit against the climate policy of the United States and Canada.29 The Commission as well as the Inter-American Court of Human Rights have, however, found human rights violations in more narrowly framed cases, for example in the Mayagna case of 2001, in which an indigenous group claimed that Nicaragua had not fulfilled its duty to protect against environmental harm caused by private corporations.30 In a landmark advisory opinion of 2017, the Court moreover highlighted the connection between the protection of the environment and human rights, recognized the human right to a healthy environment and elaborated on the obligations of states to prevent environmental damages within and outside of their territory.31 The African Commission on Human and Peoples’ Rights also found in the Ogoniland decision of 2001 that the Nigerian government’s involvement in oil production at the expense of the environment amounted to a violation of the right to health and the right to a “African Court on Human and Peoples’ Rights”.32 In the Ogiek case of 2017 the African Court of Human and Peoples’ Rights rejected broad claims of the government that the impairment of human rights of indigenous people was necessary for environmental reasons and highlighted that impediments to the environment can violate human rights.33 The European Court of Human Rights has until now not ruled directly on climate change issues but has nonetheless developed an extensive body of jurisprudence dealing with the implications of environmental damages for human rights.34 Moving beyond the context of human rights, the role of the Court of Justice of the European Union is closely linked to the specific content of EU environmental law, which the Court has dealt with in hundreds of cases.35 The overall approach of the Court has been characterized as generally favourable to environmental protection while at the same time balancing diverging economic and environmental interests.36 The Carvalho case provides the Court of Justice with the opportunity to address climate change in a more comprehensive manner. 26

See Verheyen/Zengerling, supra (fn. 13), 421‐423. ICSID, Burlington Ressources Inc. v. Republic of Ecuador, ICSID Case No. ARB/08/5, Decision on Counterclaims of 7 February 2017; see da Silva, N.Y.U. J. Int’l L. & Pol. 50 (2018), 1417. 28 See Verheyen/Zengerling, supra (fn. 13), 423‐424, 433‐435; on the “human rights turn” in climate change law, see Peel/Osofsky, TEL 7 (2018), 37; Savaresi/Auz, supra (fn. 9), 244. 29 See Meltz, in: Masson (ed.), Climate Change Litigation and Law, 2010, 1 (32‐33); Abate, Stan. Envtl. L.J. 26A (2007), 3 (29‐49); Osofsky, Am. Indian L. Rev. 31 (2007), 675. 30 Inter-American Court of Human Rights, Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of 31 August 2001. 31 Inter-American Court of Human Rights, Environment and Human Rights, Advisory Opinion OC-23/ 17 of 15 November 2017, requested by the Republic of Colombia, see Markus/Silva-Sanchez, ZUR 2019, 150. 32 African Commission on Human and Peoples’ Rights, The Social and Economic Rights Action Center and the Center for Economic and Social Rights v. Nigeria, Communication 155/96, decision taken at 30th Ordinary Session, Banjul, The Gambia, from 13 to 27 October 2001, ACHPR/COMM/A044/1659. 33 African Court on Human and Peoples’ Rights, Judgment of 26 May 2017, Application No. 006/2012, African Commission on Human and Peoples’ Rights v. Kenya; see Chenwi, in: Knox/Pejan (eds.), The Human Right to a Healthy Environment, 2018, 59 (77‐83). 34 See Pedersen, Geo. Int’l Envtl. L. Rev. 21 (2008), 73; Pedersen, in: Knox/Pejan (eds.), The Human Right to a Healthy Environment, 2018, 86. 35 Bogojević, Law & Policy 35 (2013), 184. 36 See Krämer, in: Voigt (ed.), International Judicial Practice on the Environment, 2019, 25 (46). 27

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Most judicial decisions dealing with climate change, including the most ambitious 7 decisions, have, however, been issued by domestic courts. Constitutional courts and high courts, courts of general jurisdiction and increasingly also specialized environmental courts37 have dealt with different aspects of climate change, with U.S. and Australian courts as forerunners,38 at least quantitatively speaking and regarding cases more or less directly dealing with climate change and its implications. Within Europe, the Aarhus Convention has enhanced the possibilities for courts to deal with environmental and also climate change related issues. While, of course, every domestic court can only adjudicate cases within its jurisdiction and within the legal parameters of its domestic legal system, decisions of domestic courts are being treated as general landmark judgments with implications not only for the jurisdiction in which they were issued but globally. They are seen as a possible inspiration for other domestic courts to draw upon, but also as pioneers paving the path for international courts to follow.39

2. Protagonists Climate change related claims can be brought by different plaintiffs against different 8 defendants. Individuals and other private actors can bring suit against the state or governmental actors for noncompliance with the state’s obligations as, for example, in the cases of Leghari, Urgenda and Juliana, or against the European Union in the Carvalho case. Private actors can sue other private actors for violating climate protection obligations or for their general contribution to climate change as in the Lliuya case against RWE. Under specific circumstances public actors can also sue private companies: In 2008, the Alaskan city of Kivalina brought, ultimately without success, suit against the Exxon Mobil Corporation arguing that Exxon was responsible for the destruction of the village through flooding caused by climate change.40 Finally, state actors can sue other state actors in connection with climate protection measures, as in the case of Massachusetts v. EPA.41 This case also shows the possibility of combinations between vertical and horizontal claims, since the proceedings against the agency were initiated by different states, local governments as well as private organizations. Climate change litigation is, however, not limited to the parties of the proceedings. 9 Collective actors such as NGOs may, depending on the particular procedural rules applicable, have standing in front of the court or may play a role in the background of the judicial proceedings, funding, supporting or steering an individual who has standing or submit amicus curiae briefs.42 Who can bring a case against whom is, of course, regulated by the procedural rules of the specific courts as well as determined by the rights and obligations established under the applicable law, so that the possible range of protagonists of climate change litigation is defined by procedural as well as substantive law. 37 Pring/Pring, in: Paddock/Glicksman/Bryner (eds.), Decision Making in Environmental Law, 2016, 452; Preston, J. Envtl. L. 26 (2014), 365; Guidone/Jonas, in: Voigt/Makuch (eds.), Courts and the Environment, 2018, 369. 38 Peel/Osofsky, Climate Change Litigation, 2015; Osofsky/Peel, in: Voigt (ed.), International Judicial Practice on the Environment, 2019, 311. 39 Voigt, in: Voigt (ed.), International Judicial Practice on the Environment, 2019, 1 (11); Roy/Woerdman, J. En. & Nat. Res. L. 34 (2016), 165 (166‐167). 40 U.S. District Court for the Northern District of California, Native Village of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863, 883 (N.D. Cal. 2009); upheld by U.S. Court of Appeals for the Ninth Circuit, Native Village of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir. 2012); on the role of cities in climate change governance in general Aust, RECIEL 28 (2019), 57. 41 Osofsky, in: Farber/Peeters (ed.), Climate Change Law, Vol. I, 2016, 325 (331‐332). 42 Tava, in: Alam/Bhuiyan/Chowdhury/Techera (eds.), Routledge Handbook of International Environmental Law, 2013, 123.

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3. Goals 10

Strongly linked to the question of the participants are the different goals pursued with climate change litigation.43 While within climate change law a major differentiation is drawn between mitigation and adaptation,44 further differentiation can be made in the context of litigation goals, in particular with regard to mitigation. Compensation claims for damages that have already occurred do not fit neatly within this differentiation and have to be regarded as a separate class of litigation. And finally, cases dealing more indirectly with climate change also have to be taken into account.45

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a) Mitigation governance. Firstly, climate change litigation can aim at compelling public authorities to take more effective measures to reduce emissions. Such claims will regularly not target specific measures of the state but rather, as for example in the Urgenda, Leghari and Friends of the Earth cases or in the Juliana proceedings, argue that the actions taken by the public authority are in general insufficient. The specific claim and its prospects for success will depend highly on the applicable law: When climate emission goals have been firmly established, as for example under the top-down approach of the Kyoto Protocol,46 litigants might be able to argue that the legally binding goals have not been fulfilled, as attempted, ultimately unsuccessfully, in the Friends of the Earth litigation. Under the bottom-up approach of the Paris Agreement claimants can argue that a state is not fulfilling its mainly procedural obligations with regard to the nationally determined contributions to emission mitigation.47 Within the European Union, judicial review brought either directly under the infringement proceedings or indirectly through the preliminary reference procedure can aim at compliance by states with their obligations to reduce emissions, to comply with climate protection standards or to incorporate other climate-related measures.48 Domestic courts also play an important role in scrutinizing whether states comply with pollution targets of EU directives, as, for example, in the ClientEarth case in front of U.K. courts, with the Administrative Court in 2018 declaring the Air Quality Plan of the government to be unlawful.49 Apart from specific legal rules dealing with reduction targets, courts have resorted to general principles and legal rules, in particular human and fundamental rights, as a basis for obligations of states to combat climate change.

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b) Mitigation regulation. Secondly, and with fluent transition from the first group of cases, claims can be directed not at measures to reduce greenhouse gas emissions but rather aim to compel administrative agencies to take into consideration or attribute higher weight to climate change concerns. In this vein, the U.S. Supreme Court in Massachusetts v. EPA held that the EPA, under the Clean Air Act, had the authority to 43 See Bodansky/Brunnée/Rajamani, International Climate Change Law, 2017, 285‐287; Hsu, U. Colo. L. Rev. 79 (2008), 101 (111‐115). 44 Carlarne/Gray/Tarasofsky, in: Carlarne/Gray/Tarasofsky (eds.), The Oxford Handbook of International Climate Change Law, 2016, 3 (16‐20); Bodansky/Brunnée/Rajamani, supra (fn. 43), 11‐14. 45 On the distinction between direct and indirect climate change cases Peel/Osofsky/Foerster, Melb. Univ. Law Rev. 41 (2017), 793 (801‐802). 46 See Freestone, in: Carlarne/Gray/Tarasofsky (eds.), The Oxford Handbook of International Climate Change Law, 2016, 97 (104‐106). 47 See Bodansky/Brunnée/Rajamani, supra (fn. 43), 231‐236; Mayer, TEL 7 (2018), 251; Peel/Osofsky/ Foerster, supra (fn. 45), 808‐811. 48 See Bogojević, in: Carlarne/Gray/Tarasofsky (eds.), The Oxford Handbook of International Climate Change Law, 2016, 670. 49 England and Wales High Court (Administrative Court), ClientEarth (No. 3) v. Secretary of State for the Environment, Food and Rural Affairs, Secretary of State for Transport and Welsh Ministers [2018] EWHC 315 (Admin).

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regulate greenhouse gas emissions and that the reasons given by the agency not to do so were unlawful. In Germany, proceedings initiated by the consumer protection organization Deutsche Umwelthilfe arguing that the state had to do more against pollution in cities and even consider banning heavily polluting diesel motors led to a number of favourable administrative court decisions, ultimately upheld by the Federal Administrative Court.50 Other court decisions have held that decisions by planning or regulatory agencies insufficiently considered the effects of a project on greenhouse gas emissions.51 c) Mitigation of specific emissions. Thirdly, suits can be initiated directly against the 13 emitting entities, usually private or public held companies as, for example, in the attempt to sue electric power companies in the United States for their greenhouse gas emissions, ultimately quashed by the Supreme Court in 2011.52 While there are established private law principles dealing with harmful emissions under tort, delict or property law,53 claims focusing not on specific harm or violations but rather on greenhouse gas emissions and climate change as such raise particularly challenging questions.54 d) Adaptation. Turning from mitigation to adaptation, claims can fourthly be 14 brought in the context of measures not aiming at reducing greenhouse gas emissions directly but rather addressing the impact of climate change. In this context, litigation can, for example, deal with impact studies and vulnerability assessments or concern the consideration of the impact of climate change on planning decisions.55 e) Compensation. Among the most controversial forms of litigation are claims for 15 compensation for climate change related damages. Such claims can be brought against public as well as private entities emitting greenhouse gases or otherwise negatively affecting the environment. Cases have been brought for environmental damages caused by specific measures.56 They often have a transnational dimension as, for example, the case brought by Ecuadorian individuals and indigenous communities against the Texaco Oil Company which led to judicial proceedings in the United States, Ecuador and Canada as well as arbitral proceedings.57 In international contexts, compensation for transboundary environmental damages has been adjudicated starting with the famous Trail Smelter arbitration58 leading up to the 2018 decision of the ICJ awarding compensation to Costa Rica for environmental damage caused by Nicaragua.59 By contrast, under a more “radical” approach compensation claims are raised for damages based on the argument that a company has contributed to climate change through the emission of greenhouse gases and is therefore responsible and liable for climate change 50 Federal Administrative Court, Judgments of 27 February 2018, BVerwG 7 C 26.16 and BVerwG 7 C 30.17; see Winkler/Zeccola/Willing, DVBl. 2019, 76; Franzius, NuR 2018, 433. 51 See, e.g., Environment Court of New Zealand, Genesis Power Ltd. V. Franklin District Council, Decision No. A 148/2005; High Court of New Zealand, Auckland Registry, Greenpeace New Zealand v. Northland Regional Council and Might River Power Limited, CIV 206‐404‐004617 (2006), New South Wales Land and Environment Court, Gray v. The Minister for Planning and Ors [2006] NSWLEC 720. 52 U.S. Supreme Court, American Electric Power Company v. Connecticut, 564 U.S. 410 (2011). 53 See Howarth, in: Lees/Viñuales (eds.), The Oxford Handbook of Comparative Environmental Law, 2018, 1091 (1098‐1110). 54 Kysar, Envtl. L. 41 (2011), 1 (3‐4). 55 For a comprehensive analysis see Peel/Osofsky, supra (fn. 38), 108‐172. 56 See Grinlinton, in: Fisher (ed.), Research Handbook on Fundamental Concepts of Environmental Law, 2016, 391 (399‐400). 57 See Léon Moreta/Liu, in: Voigt/Makuch (eds.), Courts and the Environment, 2018, 271. 58 PCA, Trail Smelter Case (US v. Canada) (1941) 3 RIAA 1905. 59 ICJ, Costa Rica v. Nicaragua, supra (fn. 18).

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related damages.60 Such compensation claims have been brought before the courts in the United States and Australia,61 and also the German case of Lliuya v. RWE, dealing with a claim regarding compensation for adaptation measures, falls within this category. These cases raise complex questions regarding the standard of liability, causation and responsibility as well as with regard to the burden of proof. Not directly tackling greenhouse gas emissions but closely related to these cases are suits brought against companies for falsely advertising the amount of greenhouse gas emissions affiliated with the production or use of their products.62 16

f) Auxiliary litigation. While those five kinds of claims are at the heart of climate change litigation, there are numerous other constellations in which courts address issues related to climate change, including cases involving access to information or participation rights in environment-related decision-making processes,63 concerning compliance with climate change related reporting or surveillance obligations64 or commitments to support other states,65 as well as cases dealing with the legal framework for climate change related to actions such as compensation claims arising out of NGO protest measures.66

III. Contextualization: factors influencing the role of courts 17

This brief overview already shows the manifold actual and potential dimensions of climate change litigation. A number of factors from within and outside the legal system influence whether and to what extent climate change litigation can occur and can be successful.

1. Procedural rules and the competences of courts 18

Since climate change litigation needs to be initiated by a plaintiff, the question of who has standing plays a vital role. In many international as well as domestic contexts the person or entity wanting to bring a claim needs to show an impact on her individual rights or a legally protected interest.67 In the context of environmental law in general and with regard to climate change in particular such a focus on individual rights and individual concernment will often be an obstacle so that the receptiveness of a legal system for climate change litigation will to a high degree depend upon the way and degree in which it opens itself towards public interest litigation, a question that may depend on legislation as well as doctrines of standing and the way they are employed by courts. These rules change from jurisdiction to jurisdiction and even within federal systems.68 Within international law and in particular within the European Union the Aarhus Convention has provided significant impulses for a more lenient approach to 60 See Grossman, in: Burns/Osofsky (eds.), Adjudicating Climate Change, 2009, 193; Brunnée/Goldberg/ Lord/Rajamani, in: Lord/Goldberg/Rajamani/Brunnée (eds.), Climate Change Liability, 2012, 23 (32‐37). 61 Peel/Osofsky, Minn. L. Rev. 99 (2015), 2177. 62 See Koch/Lührs/Verheyen, in: Lord/Goldberg/Rajamani/Brunnée (eds.), Climate Change Liability, 2012, 376 (415‐416). 63 See Razzaque, in: Alam/Bhuiyan/Chowdhury/Techera (eds.), Routledge Handbook of International Environmental Law, 2013, 137. 64 See Zahar, in: Alam/Bhuiyan/Chowdhury/Techera (eds.), Routledge Handbook of International Environmental Law, 2013, 349 (357‐359); Bodansky/Brunnée/Rajamani, supra (fn. 43), 193‐195 and 242‐244. 65 See Mayer, The International Law on Climate Change, 2018, 200‐208. 66 See Koch/Lührs/Verheyen, supra (fn. 62), 398‐399. 67 See, e.g., U.S. Supreme Court, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560‐561 (1992). 68 See Millner, Deakin LR 16 (2011), 189 (197‐199).

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standing rules, allowing for more public interest litigation at least in some contexts of environmental litigation,69 a potential that has, nonetheless, not yet been fully developed.70 Rules of standing have also been at the centre of important climate change cases such as Massachusetts v. EPA, Urgenda and Carvalho. Through the rules of standing the legislature as well as the courts themselves, which ultimately have the authority to interpret and apply those, rules can govern the extent to which climate change litigation is possible. Consequently, those rules are often at the centre of legal as well as policy debates surrounding climate change law. The same applies to other procedural rules and determinants, with the rules on costs of judicial proceedings as a potentially significant barrier to climate change litigation.71 Deeply connected to the question of standing and other procedural rules are rules 19 regarding the competence of a court to hear and adjudicate a climate change case. With regard to international courts, the restrictive rules of jurisdiction prove to be a decisive barrier to more comprehensive judicial engagement with climate change.72 Within the context of domestic courts, the judicial competence to review measures taken – and, even more controversially, not taken – by the legislature and the executive influences the extent to which a court can advance climate protection goals. Consequently, the political question doctrine, standards of judicial review and implications from the concept of separation of powers are discussed not only in academic debate but also within judicial decisions addressing climate change.73 While all kinds of courts can potentially litigate climate change cases, the establish- 20 ment of special environmental courts or at least specialized chambers within a court of general jurisdiction can enhance the prospects of climate change litigation. Against the background of the ever-increasing complexity of environmental law as well as scientific uncertainties,74 specialized courts develop a particular competence in dealing with climate change cases. They might prove to be more open towards climate change claims and exhibit a structural bias towards this goal as has been shown with other specialized dispute-settlement and supervisory bodies.75 The establishment and strengthening of environmental law within law school curricula may provide further stimulation for an enhanced engagement with climate change. International and regional organizations have also started to get involved in capacity-building measures and in training judges in questions of environmental adjudication.76

2. Substantive law and the legal order in general A decisive factor for the success of climate change litigation is the extent to which 21 substantive legal principles and rules support the claim. Climate Change mitigation claims, for example, might have stronger prospects of success when a state has accepted specific legally binding mitigation obligations under international law or passed legislation encompassing binding mitigation goals. Compensation claims may have better prospects of success when a legal order encompasses specific laws on compensation.77 69

See Mangold, Ind. J. Global Legal Stud. 21 (2014), 223. See Schoukens, in: Voigt (ed.), International Judicial Practice on the Environment, 2019, 74; critical Ruffert, DVBl. 2019, 1033. 71 Peel/Osofsky, supra (fn. 38), 279‐283. 72 Strauss, supra (fn. 20), 338‐348. 73 See Peel/Osofsky, supra (fn. 38), 266‐283; Hsu, supra (fn. 43), 143‐158; Ewing/Kysar, Yale L.J. 121 (2011), 350 (378‐409). 74 On the need for courts to consult scientific experts Roy/Woerdman, supra (fn. 39), 165. 75 See Payandeh, in: Andenas/Bjorge (eds.), A Farewell to Fragmentation, 2015, 297. 76 See Robinson, in: Voigt/Makuch (eds.), Courts and the Environment, 2018, 2 (18‐27). 77 See Kahl/Daebel, supra (fn. 8), 76. 70

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With regard to the applicable law in climate change litigation, three general observations can be made: 22 Firstly, climate change litigation reflects the polycentric nature of climate change governance.78 While international courts and tribunals are generally limited to applying international law,79 domestic courts regularly apply domestic law as well as international law. The Leghari decision referred to international environmental principles and the Urgenda decision is based on international environmental law and the European Convention on Human Rights, which are relied upon to substantiate the duty of care under Dutch law. Claims can also be grounded in laws implementing international legal obligations, as in the Friends of the Earth litigation based on the Canadian legislation implementing the Kyoto Protocol or the Carvalho case dealing with EU legislation incorporating and based on obligations under the Kyoto Protocol and the Paris Agreement. The multilevel interplay of international and domestic law but also regional as well as sub-national law shapes and defines climate change litigation. 23 Secondly, courts in climate change litigation apply general principles and considerations as well as more concrete norms and obligations. International climate change law is defined by broad legal principles, such as the no-harm rule, the precautionary principle, the polluter pays principle or the concept of sustainable development.80 At the same time it consists of narrowly framed treaty-based obligations, in particular the meticulously defined mitigation obligations as well as procedural rules. Similarly, under domestic law, broad principles, such as constitutional commitments to the protection of the environment or a human right to a healthy environment,81 stand alongside specific legislative as well as regulatory measures. Climate change legislation can therefore either address possible violations of general principles as in the cases of Leghari and Urgenda or of rather specific provisions as in Massachusetts v. EPA dealing with the interpretation of the Clean Air Act. It can also focus on the interplay of the two arguing that specific obligations have to be interpreted in light of general principles or that general principles can be derived from more concrete and specific obligations and provisions. 24 Thirdly, climate change litigation is significantly informed by the interplay of environmental law with other areas of law as well as general rules and principles of law. On the international level many rules of general international law can have implications for climate change litigation.82 Moreover, the focus of human rights law on individuals has been employed to advance climate protection goals.83 Domestic courts as well as regional human rights courts have substantiated the right to a healthy environment and paved the way by recognizing the relationship between the need for environmental protection and the right to life84 as well as other human rights. The potential of rights-based approaches for climate change litigation can be seen in the extensive jurisprudence of the Indian Supreme Court85 or in the Urgenda case’s reliance on the European Convention on Human Rights. Moreover, the obligation to protect under human rights and fundamental 78

On the concept of polycentricity see Osofsky, supra (fn. 41), 325; Cole, Climate Law 2 (2011), 395. See Art. 38 ICJ Statute for the ICJ. Arbitration tribunals may, under certain circumstances, also apply domestic law, see Born, International Arbitration: Law and Practice, 2nd ed. 2015, 239. 80 See Bodansky/Brunnée/Rajamani, supra (fn. 43), 40‐55. 81 See Pedersen, in: Lees/Viñuales (eds.), The Oxford Handbook of Comparative Environmental Law, 2019, 1073 (1077‐1080). 82 See ILA, Resolution 2/2014, Declaration of Legal Principles Relating to Climate Change; Mayer, supra (fn. 65), 66‐88; Schwarte/Frank, Climate Law 4 (2014), 201. 83 See Daya-Winterbottom, in: Voigt/Makuch (eds.), Courts and the Environment, 2018, 59. 84 See also Human Rights Committee, General comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights, on the right to life, UN Doc. CCPR/C/GC/36, mn. 62. 85 Rosencranz/Jackson, Col. J. Envtl. L. 28 (2003), 223; Badrinarayana, Brook. J. Int’l L. 43 (2017), 75 (97‐107). 79

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rights doctrine is discussed as a legal basis for farther-reaching climate change mitigation measures.86 Similarly, claims based on domestic law rely to a great extent on constitutional fundamental rights as in the Leghari case, Juliana v. United States or in the constitutional complaint pending before the German Constitutional Court. Moving beyond constitutional law, climate change litigation builds on rules stemming from other areas of law. In this sense, the Dutch Civil Code played an important role in the Urgenda case, and the claims raised in Lliuya v. RWE are primarily based on the general provision dealing with interferences with property under the German Civil Code.87 The prospect of success for climate change litigation will, in this context, depend on the openness and adaptability of these rules to the phenomenon of climate change, as discussions in particular with regard to the suitability of tort law to deal with climate change damages88 show. This reliance on general principles and rules of public as well as private law shows the potential for climate change litigation even in the absence of more specific climate change laws. It moreover allows for an easier transfer of legal arguments across legal orders since the right to life, tort law and property protection may operate in similar manners in different domestic legal regimes.89

3. Political and social environment Moving beyond the internal legal perspective, the willingness of NGOs and other 25 potential claimants to bring climate change cases before the courts and the openness of judges towards climate protection arguments will, to a certain extent, also depend on the political and social environment in which litigation takes place: While courts are bound to apply the law and therefore rely on the political actors to make law in order to contribute to climate protection, they can step in when political action stalls. Considering that climate change law consists of well-established principles of environmental law and against the background of the implications of fundamental rights as well as general legal principles courts can adjudicate on the inactivity of political actors or ineffectiveness of the measures taken, as in the Leghari and Urgenda cases. Climate change litigation may even primarily be sought, when political actors are unwilling to regulate or legislate.90 However, courts will also have to take into account or at least be aware of what is possible within a specific political climate,91 even when they explicitly deny the relevance of such considerations as the District Court of the Hague did in the Urgenda decision.92 And courts will also play a role when there is strong action by the political actors, although their roles might then change from filling the lacunae of political inaction to adjudicating and thereby interpreting the laws and regulatory measures taken by the legislature and the executive. Ambitious international agreements on climate protection can also motivate courts to advance more ambitious judicial decisions.93 Climate change litigation furthermore takes place within a societal space with media 26 attention and public opinion as significant factors. The rapidly growing awareness for the devastating impact of climate change and for the urgency of resolute action may 86

Peel/Osofsky, supra (fn. 28), 37; Cremer, ZUR 2019, 278. See Frank, NVwZ 2017, 664 (665‐669). 88 See Grossman, supra (fn. 60), 193. 89 Carnwath, J. Envtl. L. 28 (2016), 5 (9). 90 Peel/Osofsky, supra (fn. 38), 339; Osofsky/Peel, supra (fn. 38), 332‐333; Sands, supra (fn. 13), 23; Brunnée/Goldberg/Lord/Rajamani, supra (fn. 60), 6; Carnwath, J. Envtl. L. 26 (2014), 177 (181‐182); Ewing/Kysar, supra (fn. 73), 350; Setzer/Nachmany, in: Jordan/Huitema/van Asselt/Forster (eds.), Governing Climate Change, 2018, 47 (56‐57); Bergkamp/Hanekamp, EEELR 2015, 102 (103). 91 Osofsky/Peel, supra (fn. 38), 332‐333. 92 District Court of the Hague, Urgenda Foundation, supra (fn. 5), mn. 4.98. 93 Mayer, supra (fn. 65), 248. 87

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contribute to the willingness of NGOs and individuals to bring cases before the courts. The public may be more willing to contribute financially to the strategic litigation endeavours of environmental NGOs, and attempts of political or corporate actors to bar such litigation – whether through cutting the funds for publicly financed environmental organizations or through legislative reform limiting the rules of standing for NGOs – will have more or less prospects for success, depending on public opinion. Even judges will not remain unimpressed by the prevailing opinions in society and science and might be more willing to advance progressive climate protection goals when society at large feels the pressing need for action. The awareness of judges for the situatedness of their decisions in a political and social environment can even be traced in some of the landmark climate change decisions: In Massachusetts v. EPA, for example, Justice Stevens began the reasoning of the majority decision with a description of the phenomenon and of the science of global warming and referred to the “unusual importance” of the issue as a ground to grant the writ of certiorari.94 And in the Urgenda decision, the District Court of the Hague went above and beyond to situate its ruling within the global discussion of the causes, effects and remedies of climate change.

IV. Evaluation: the legitimate functions of courts in climate protection 27

Courts engage in climate change litigation, have already issued landmark decisions and can be expected to do so increasingly in the future. From a normative perspective, however, doubts about the legitimacy of the role of courts in climate protection have been raised. Courts have dismissed cases with reference to the separation of powers95 or have felt obliged to address the compatibility of their ruling with the system of separation of powers.96 Notwithstanding the varying meaning and significance of the doctrine in different legal systems97 and debates about its rationale,98 the constitutional allocation of power and authority among different governmental branches and organs implies that each branch has its own competences and may not encroach on the realm of the others and that some governmental bodies are more suitable for some forms of exercise of public authority than others.99 Against the conceptual background of the separation of powers, the different objections generally raised against judicial climate protection can be discussed within three groups

1. Climate change litigation between law and politics 28

A first common criticism raised against climate change litigation holds that courts, when they advance far-reaching climate protection objectives, might overstep the boundaries of the law and enter into the realm of politics.100 While the appropriateness 94

U.S. Supreme Court, Massachusetts v. EPA, supra (fn. 3), 506. See Federal Court, Friends of the Earth v. Canada, supra (fn. 4), mn. 25. See District Court of the Hague, Urgenda Foundation, supra (fn. 5), mn. 4.94‐4.102. 97 See Martinez, in: Rosenfeld/Sajó (eds.), The Oxford Handbook of Comparative Constitutional Law, 2012, 547 (548); on its transferability to the EU and international level Möllers, The Three Branches, 2013, 150‐226. 98 See Carolan, The New Separation of Powers, 2009, 18‐45; Möllers, supra (fn. 97), 16‐50. 99 See Martinez, supra (fn. 97), 548; with an emphasis on efficiency Barber, Camb. L.J. 60 (2001), 59; with an emphasis on legitimacy Möllers, supra (fn. 97), 51‐109. 100 See, e.g., Bergkamp/Hanekamp, supra (fn. 90), 105‐107; Bergkamp, JEEPL 12 (2015), 241 (245‐248); Wegener, ZUR 2019, 3 (10‐11); Zahar, International Climate Change Law and State Compliance, 2015, 24; Voland, NVwZ 2019, 114. 95 96

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of this criticism depends on the specific decision and its reasoning, some features of climate change litigation make it particularly amenable to this objection: Firstly, within claims aimed at increased mitigation governance courts will oftentimes 29 not scrutinize measures issued by the legislature or the executive but rather address their failure to act as, for example, in the cases of Leghari or Urgenda. As is widely discussed within fundamental and human rights doctrine, the recognition and judicial enforcement of positive obligations can be deemed problematic due to the political leeway of the legislature and the executive with regard to balancing and prioritizing different, oftentimes conflicting political goals and the allocation of public funds to specific projects.101 However, insofar as legally binding climate change mitigation obligations of states exist, either under international or national law, courts are, within the procedural framework in which they operate, called upon to adjudicate on the compliance with these obligations. In declaring that the executive or the legislature violated these obligations, courts do not illegitimately engage in politics. The authority of courts to order the executive or even the legislature to take specific measures is, however, limited due to the political leeway of the two branches of government, a limit even the progressive Urgenda court respected.102 When scrutinizing whether climate protection measures are legally sufficient, courts 30 face a second challenge with regard to the applicable standards: While it might be possible for courts to determine a failure to comply with legal obligations when the state has entered into binding reduction targets, the task to develop a threshold standard beyond such specific obligations is inherently more difficult. Consequently, a fundamental challenge against the Urgenda decision is the way in which the court reached the conclusion that the state needs to ensure that greenhouse gas emissions will be at least 25 % lower in 2020 than they were in 1990, relying heavily on its reading of the reports of the Intergovernmental Panel on Climate Change.103 In the absence of concrete legally binding mitigation targets the determination of specific limits by courts is problematic. The determination of a concrete emission threshold is an inherently political task. Thirdly, when courts derive rules for climate protection from norms that were not 31 specifically meant to address climate change, such as, for example, fundamental rights, tort or property law or even general principles of environmental law as the no harm or the precautionary principle, their reasoning might be criticized for circumventing the legislature and its competence to decide upon the rules dealing with climate change mitigation and adaptation. However, while courts have to ensure that their rulings do not contradict the legislature, the interpretation of general principles of law as well as the application of such principles and rules to new social phenomena is inherently the ambit of the judiciary. While the specific implications for example of the fundamental right to life, the tort law of nuisance or the no harm principle for climate change related threats are open for debate, courts do not overstep their boundaries when they apply these general principles and rules to climate protection cases. Although the specific content of many international as well as national rules and their implications for climate protection may be open for debate, the indeterminacy of many rules of climate change law does not mean that courts are barred from deciding cases based on these rules. It is up to the political actors to enter into more concrete international treaty obligations or

101

See Fredman, Comparative Human Rights Law, 2018, 95‐108. See Spijkers, in: Voigt/Makuch (eds.), Courts and the Environment, 2018, 305, (332‐333). 103 See Spijkers, supra (fn. 102), 319‐322; Bergkamp/Hanekamp, supra (fn. 90), 107‐110; Wegener, supra (fn. 100), 4; Mayer, supra (fn. 47), 181‐184. 102

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pass farther-reaching domestic laws. But it is the authority of the courts to interpret and, within boundaries, develop the law as it stands.104

2. The suitability of judicial engagement with climate change A second group of objections against climate change litigation is based on the assumption that courts are generally not the appropriate forum to address climate change.105 Assuming that the allocation of functions to different branches of government aims at an effective exercise of powers with regard to the organization, composition, mode of operation and procedure,106 this line of criticism can be understood from the perspective of separation of powers. A major thrust of contestation is based on the peculiarities of climate change as a “super wicked problem”,107 encompassing the relationship between cause and effect, the interplay between anthropogenic measures and natural circumstances, the scientific uncertainties surrounding climate change, the relevance of different actors, including international organizations, states and public agencies, corporations as well as NGOs and consumers, its global reach, and finally the interplay between environmental concerns and other, in particular economic interests. Against this background it is argued, in the spirit of Lon Fuller’s critique of the limits of adjudication of polycentric problems,108 that climate change governance requires the evaluation of political and scientific factors as well as balancing of different interests, a task that courts are neither equipped nor legitimated to undertake.109 Consequently, U.S. courts have dismissed climate change litigation on the basis of the political question doctrine.110 33 This argument against judicial climate protection does again not apply to all forms of climate change litigation: When courts apply legal rules dealing specifically with climate change, they apply the normative result of the legislature dealing with the scientific and political dimension of the issue and weighing of the competing interests. The argument therefore only applies in the absence of such specific legal rules, for example when courts deduce mitigation targets or adaptation consequences from general legal principles and rules. In this context, however, the suitability critique coincides with the aforementioned contestation that courts transgress from the legal into the political realm. That courts generally only adjudicate particular legal disputes and do not deal with the issue of climate change in a comprehensive manner, taking into account its national as well as international dimension and its implications for the economy and society in general, is also not a convincing argument against judicial climate protection since it lies in the nature of courts that they only provide a specific judicial approach to a specific aspect of a social problem. As far as it is argued that climate change litigation may encounter difficulties with regard to the competences and knowledge of judges or the resources of the judicial system,111 this does not imply that courts are unsuitable to deal with climate change but rather indicates the need for judicial capacity-building in climate-related matters.112 32

104

See von Bogdandy/Venzke, In Whose Name?, 2014, 101‐111. See, e.g., Bergkamp/Hanekamp, supra (fn. 90), 107. 106 See German Federal Constitutional Court, Rechtschreibreform, BVerfGE 98, 218 (251‐252). 107 Lazarus, Cornell L. Rev. 94 (2009), 1153; Hilson, J. Envtl. L. 25 (2013), 359 (363); Incropera, Climate Change: A Wicked Problem, 2016. 108 Fuller, Harv. L. Rev. 92 (1978), 353 (394‐404). 109 See, e.g., Bergkamp/Hanekamp, supra (fn. 90), 107. 110 See, e.g., Connecticut v. American Electric Power, 406 F. Supp. 2d 265, 272 (S.D.N.Y. 2005). 111 Robinson, supra (fn. 76), 18. 112 Similarly Graser, ZUR 2019, 271 (276‐277). 105

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3. The effectiveness of climate change litigation This leads to a third stream of contestation which assumes the ineffectiveness of 34 litigation as an instrument for the protection of the climate. The focus of climate change activists on litigation is called into question as encompassing “illusionary expectations”.113 Critics of climate change litigation rather emphasize the importance of political solutions.114 With regard to effectiveness, it has been argued that even successful climate change cases will not significantly contribute to the reduction of greenhouse gas emissions. Eric Posner, for example, has pointed out that while Massachusetts v. EPA has been lauded as a landmark decision for climate protection, its effects would at best be marginal since regulation by the EPA could not significantly affect climate change on a global level.115 This criticism misses the point for two reasons. Firstly, while climate protection efforts are needed on a global scale, measures taken on the national level are not futile. The polycentricity of climate change does not only mean that multiple layers of governance play a role in combatting climate change, it also means that actors on all levels of governance can, collectively as well as individually, contribute to mitigation as well as adaptation efforts.116 Secondly, the importance of climate change litigation may go well beyond the immediate effects of a particular court decision.117 Massachusetts v. EPA massively impacted the regulatory activities of the EPA as well as the overall approach of the U.S. administration to emission regulation118 and even influenced international treaty negotiations.119 It has therefore been regarded as a turning point in U.S. climate change regulation and been attributed the potential to become “one of the most important court decisions in history”.120 A narrow focus on the immediate implications of a court decision for climate change 35 regulation, moreover, misses the multifunctional dimension of judicial proceedings. Judicial decisions not only legitimize the exercise of public authority when legislative or executive measures are upheld121 but can also add to the credibility of arguments within public debates: Court decisions that highlight the anthropogenic character of climate change can contribute to fighting climate change scepticism or denial.122 Within the internal perspective of the legal system, domestic as well as international courts can contribute to clarifying the at least in part notoriously vague und uncertain rules of climate change law and thereby contribute to the crystallization of a “common law for the environment”.123 Finally, while climate change litigation regularly aims at immediately affecting public regulation or corporate practices, litigants can also intent to 113

Wegener, supra (fn. 100), 11‐12. See, e.g., Posner, U. Pa. L. Rev. 155 (2007), 1925; Hsu, supra (fn. 43), 165. 115 Posner, supra (fn. 114), 1926, relying on Sunstein, Harv. Envtl. L. Rev. 31 (2007), 1; a similar argument is raised against the Urgenda decision by Bergkamp/Hanekamp, supra (fn. 90), 113. 116 Emphasizing the importance and significance of smaller-scale actors in climate change protection Ostrom, Ann. Econ. Finance 15 (2014), 97; see also Mayer, supra (fn. 47), 179‐180; Setzer/Nachmany, supra (fn. 90), 58; Osofsky, Va. J. Int’l L. 49 (2009), 585; Kassmann, Duke J. Comp. & Int’l L. 24 (2013), 201 (241). 117 See Peel/Osofsky, supra (fn. 38), 28‐53; Preston, Climate Law 2 (2011), 485. 118 See Peel/Osofsky, supra (fn. 38), 63‐71, 312‐317; Hodas, in: Voigt/Makuch (eds.), Courts and the Environment, 2018, 345; Gerrard/Wilensky, in: Farber/Peeters (ed.), Climate Change Law, Vol. I, 2016, 359. 119 Osofsky, supra (fn. 41), 332; Hunter, in: Burns/Osofsky (eds.), Adjudicating Climate Change, 2009, 357 (364‐367); on the potentially negative impact on international negotiations Bergkamp/Hanekamp, supra (fn. 90), 111. 120 Carnwath, supra (fn. 89), 8. 121 See von Bogdandy/Venzke, supra (fn. 104), 14‐17. 122 Preston, J. Envtl. L. 28 (2016), 11 (13); Sands, supra (fn. 13), 26, 29‐30; Hunter, supra (fn. 119), 360‐364. 123 Carnwath, supra (fn. 90), 187; Preston, supra (fn. 122), 15; Hunter, supra (fn. 119), 367‐370. 114

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generate public attention and raise awareness for climate change124 and the proceedings can contribute to a change in attitude,125 even on a global scale.126 As long as the procedural requirements are met, climate change litigation is, contrary to the holding of the dissenting justices in Massachusetts v. EPA,127 not merely symbolic and does not delegitimize the judicial system.128

V. Conclusion: potential and limitations of judicial climate protection 36

With regard to the role of courts in climate protection, there is no reason to be either overly enthusiastic or overly critical. Courts perform their regular functions within climate change litigation.129 They settle disputes and scrutinize the actions of public as well as private actors, ensure compliance with legal obligations and enforce the rule of law. In light of the openness of many principles and rules of environmental law as well as the uncertainties regarding the implications of human and fundamental rights as well as tort and property law, the judicial interpretation and development of the law plays a crucial part in establishing the legal order for climate change. Courts are starting to explore the potential as well as the limits of climate change law and have commenced a transnational debate involving other domestic as well as international courts, political actors, civil society and legal academia. While judges are no natural allies in the fight against climate change and court decisions, especially decisions of international courts, can potentially also curtail climate protection ambitions130 or lead to political as well as judicial backlash,131 domestic as well as international litigation is and will remain an important regulatory instrument within the polycentric system of climate change governance. 124

Preston, supra (fn. 122), 13‐14; Peel/Osofsky, supra (fn. 38), 221‐265, 309, 314; Meltz, supra (fn. 29),

34. 125

Savaresi/Auz, supra (fn. 9), 261; sceptical Posner, supra (fn. 114), 1944‐1945. Sands, supra (fn. 13), 26. 127 U.S. Supreme Court, Massachusetts v. EPA, supra (fn. 3), 546‐547. 128 Spijkers, supra (fn. 102), 341. 129 Markell/Ruhl, supra (fn. 12), 15. 130 Voigt, supra (fn. 39), 17‐18. 131 See Peel/Osofsky, supra (fn. 38), 283‐308; Setzer/Nachmany, supra (fn. 90), 57. 126

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D. Climate change and duties to protect with regard to fundamental rights Bibliography: Abbott, Strengthening the Transnational Regime Complex for Climate Change, Transnational Environmental Law Vol. 3 (2014), 55; Bähr/Brunner/Casper/Lustig, KlimaSeniorinnen: lessons from the Swiss senior women’s case for future climate litigation, Journal of Human Rights and the Environment Vol. 9 (2018), 194; Bates, The Evolution of the European Convention on Human Rights, 2010; Braig, Umweltschutz durch die Europäische Menschenrechtskonvention, 2013; Cullet, Human Rights and Climate Change: Broadening the Right to Environment, in Gray/Tarasofsky/Carlarne (eds.), The Oxford Handbook of International Climate Change Law, 2016, 496; Foster/Galizzi, Human Rights and Climate Change: Building Synergies for a Common Future, in Farber/Peeters (eds.), Climate change law, 2016, 43; Graser, Strategic Litigation – oder: Was man mit der Dritten Gewalt sonst noch so anfangen kann, Rechtswissenschaft Vol. 10 (2019), 371; Gross, Postnationale Demokratie – Gibt es ein Menschenrecht auf transnationale Selbstbestimmung?, Rechtswissenschaft Vol. 2 (2011), 125; Hänni, Menschenrechtsverletzungen infolge Klimawandels, Europäische Grundrechte-Zeitschrift Vol. 46 (2019), 1; Hart, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights, 2004; Jacobs/White/Ovey, The European Convention on Human Rights, 7th ed. 2017; Kahl/Daebel, Climate Change Litigation in Germany, European Energy and Environmental Law Review Vol. 28 (2019), 67; Knox, Human Rights Principles and Climate Change, in Gray/Tarasofsky/Carlarne (eds.), The Oxford Handbook of International Climate Change Law, 2016, 213; Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany, 2nd ed. 1997; Lewis, Environmental Human Rights and Climate Change – Current Status and Future Prospects, 2018, 43; Limon, Human Rights and Climate Change: Constructing a Case for Political Action, Harvard Environmental Law Review Vol. 33 (2009), 439; May/Daly, Judicial handbook on environmental constitutionalism, 2017; Okubo, Climate Change Litigation: A Global Tendency, in Ruppel/Roschmann/Ruppel-Schlichting (eds.), Climate Change: International Law and Global Governance, Vol. I, 2013, 741; Peel/Osofsky, A Rights Turn in Climate Change Litigation?, Transnational Environmental Law Vol. 7 (2018), 37; Peel/Osofsky, Litigation as a Climate Regulatory Tool, in Voigt (ed.), International Judicial Practice on the Environment: Questions of Legitimacy, 2019, 311; Roschmann, Climate Change and Human Rights, in Ruppel/Roschmann/Ruppel-Schlichting (eds.), Climate Change: International Law and Global Governance, Vol. I, 2013, 203; Rotoullie, Le contentieux de la légalité, Revue française de droit administratif Vol. 35 (2019), 644; Schabas, The European Convention on Human Rights, 2015; Shelton, Human Rights, Health and Environmental Protection: Linkages in Law and Practice, Human Rights & International Legal Discourse Vol. 1 (2007), 9; Sicilianos, Preventing Violations of the Right to Life: Positive Obligations under Article 2 of the ECHR, Cyprus Human Rights Law Review Vol. 3 (2014), 117; Simonis, “Energieoption” plus “Waldoption”. Plädoyer für eine Doppelstrategie der Klimapolitik, Zeitschrift für Umweltpolitik & Umweltrecht Vol. 42 (2019), 358; Spijkers, The Urgenda case: a successful example of public interest litigation for the protection of the environment?, in Voigt/Makuch (eds.), Courts and the Environment, 2018, 305; Van Dyke, A Proposal to Introduce the Right to a Healthy Environment into the European Convention Regime, Virginia Environmental Law Journal Vol. 13 (1993/94), 323; Weber, European Constitutions Compared, 2019; Wegener, Urgenda – Weltrettung per Gerichtsbeschluss?, Zeitschrift für Umweltrecht Vol. 30 (2019), 3; Williams, The impact of climate change on indigenous people – the implications for the cultural, spiritual, economic and legal rights of indigenous people, The International Journal of Human Rights, Vol. 16 (2012), 648.

Contents I. Introduction ..................................................................................................... II. Constitutional foundations ........................................................................... 1. Protection of the environment ................................................................ 2. Protection of human rights ...................................................................... III. The Jurisprudence of the European Court of Human Rights .............. 1. The protection against dangerous activities ......................................... 2. The protection against natural disasters ............................................... 3. Open questions ........................................................................................... IV. The legal problems of positive obligations................................................ 1. Individual rights..........................................................................................

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Part 1. Fundamental questions 2. Access to courts .......................................................................................... 3. Causation...................................................................................................... 4. Scope of obligations ................................................................................... 5. Separation of powers ................................................................................. V. Conclusion........................................................................................................

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I. Introduction In the first period of international negotiations on climate change, human rights were not relevant. They are mentioned neither in the United Nations Framework Convention on Climate Change nor in the Kyoto Protocol. Only after the year 2000 awareness rose that fundamental rights are in many ways concerned by actual and future effects of global warming. 2 The first international petition linking climate change and human rights was filed in 2005 on behalf of an alliance of Inuit in Canada and the United States at the InterAmerican Commission on Human Rights.1 It argued that the effects of global warming constitute violations of Inuit human rights for which the United States are responsible. The petition was rejected because of insufficient information but it raised public awareness. In 2007, the representatives of the Small Island Developing States adopted the Male’ Declaration on the Human Dimension of Global Climate Change2 urging the Office of the United Nations High Commissioner for Human Rights to conduct a detailed study into the effects of climate change on the full enjoyment of human rights, which includes relevant conclusions and recommendations thereon, to be submitted prior to the tenth session of the Human Rights Council. 3 This report on the relationship between climate change and human rights has been delivered in the year 2009 by the Office of the United Nations High Commissioner for Human Rights.3 It summarizes the most important aspects of the effects of global warming. Based on the findings of the IPCC the main observed and projected changes in weather patterns related to global warming are: the contraction of snow-covered areas and shrinking of sea ice; sea-level rise and higher water temperatures; increased frequency of hot extremes and heatwaves; heavy precipitation events and increase in areas affected by drought and increased intensity of tropical cyclones (typhoons and hurricanes). The report indicates that global warming will potentially have implications for the full range of human rights, but it provides examples of rights which seem to relate most directly to climate change-related impacts. Among these are, e.g., the right to life (Art. 6 ICCPR), the right to adequate food and adequate housing (Art. 11 ICESCR) and the right to health (Art. 12 ICESCR). Meanwhile also the UN Human Rights Council has adopted several resolutions recognizing the adverse effects of climate change on human rights.4 4 Although most governments in the world recognize the duty to reduce greenhouse gas emissions and have accepted the obligations defined in the United Nations Framework Convention on Climate Change and the Paris Agreement, many states have not yet properly implemented the necessary measures. The decarbonisation of energy supply, traffic and agriculture has to be enforced against vested interests, often with 1

1 Documents available at http://climatecasechart.com/non-us-case/petition-to-the-inter-american-commission-on-human-rights-seeking-relief-from-violations-resulting-from-global-warming-caused-by-actsand-omissions-of-the-united-states/ (27.12.2019). 2 Available at http://www.ciel.org/Publications/Male_Declaration_Nov07.pdf (27.12.2019). 3 https://www.ohchr.org/EN/Issues/HRAndClimateChange/Pages/StudyImpact.aspx (27.12.2019). 4 Cullet, Human Rights and Climate Change: Broadening the Right to Environment, in Gray/Tarasofsky/ Carlarne (eds.), The Oxford Handbook of International Climate Change Law, 2016, 496 (503‐4).

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important political influence. In many states, environmental associations, citizens’ groups and individuals have tried to speed up the procedure of democratic decision making by bringing cases into national courts in order to force governments and parliaments to implement more measures against global warming. The court actions are mainly based on provisions enshrined in national constitutions or legislation, but also on European and international law. The most important line of argument is always based on the duty to protect human rights. Climate change litigation is a global phenomenon and petitions based on human 5 rights have been filed in many countries.5 This report will focus mainly on Europe, as the legal orders in the European Union are based on a more or less common understanding of human rights, derived mainly from the European Convention for the Protection of Human Rights and Fundamental Freedoms. Whereas the constitutional foundations of rights related to the protection of the environment are far from uniform (II.), the jurisprudence of the European Court of Human Rights has built a common ground for the duty to protect against environmental harm (III.). Based on this understanding and the existing case law on the national level, the main lines of legal argument related to duties to take action against climate change will be developed (IV.).

II. Constitutional foundations Although the phenomenon of global warming is known at least for 40 years and 6 despite the growing knowledge that it is a very serious problem, only very few constitutions include special provisions on climate change. Outside of Europe, examples can be found in Tunisia6 and in the new Cuban constitution adopted in February 2019, in the context of international cooperation7. In the European Union, Art. 191 TFEU defines the promotion of measures combating climate change as one of the objectives of the Union policy on the environment. Otherwise constitutional duties to fight against global warming can be derived either from general clauses on the protection of the environment (1.) or from human rights (2.).

1. Protection of the environment The constitutions of more than 150 states in the world include clauses on the 7 protection of the environment.8 There is no doubt that this also includes the protection of the climate against global warming.9 There is much variety with respect to the 5 UNEP, The Status of Climate Change Litigation, 2017, available at https://wedocs.unep.org/bitstream/ handle/20.500.11822/20767/climate-change-litigation.pdf (27.12.2019); Peel/Osofsky, A Rights Turn in Climate Change Litigation?, Transnational Environmental Law Vol. 7 (2018), 37; cf the database http:// climatecasechart.org. 6 Art. 45 para 1 Constitution of 2014: “The state guarantees the right to a healthy and balanced environment and the right to participate in the protection of the climate.” 7 Art. 16 Constitution of 2019: “The Republic of Cuba bases its international relations on the exercise of its sovereignty as well as on the antiimperialist and internationalist principles in accordance with the interests of the people and, in consequence … f) Promotes the protection and conservation of the environment as well as responding to climate change, which threatens the survival of the human species, through the recognition of common, yet differential, responsibilities; the establishment of a more just and equitable international economic order as well as the eradication of irrational patterns of production and consumption …” 8 Lewis, Environmental Human Rights and Climate Change – Current Status and Future Prospects, 2018, 43‐55. 9 For Germany cf Federal Constitutional Court, BVerfGE 118, 79 (110); 137, 350 (369).

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wording and the scope of application of these provisions. Based on the legal nature of the national clauses protecting the environment, three main categories can be distinguished. They can also be combined in one text. 8 In a majority of constitutions of EU member states we find a duty of the state to protect the environment.10 These provisions define duties for the national legislator, but they do not create rights of individual citizens and therefore they cannot be directly invoked in the national courts.11 9 In thirteen member states of the European Union the national constitutions state a right of citizens to a healthy environment.12 Nevertheless, it depends on national provisions on the access to general or constitutional courts whether such a right can be effectively invoked. For instance, Art. 53 Constitution of Spain does not mention the right to a healthy environment (Art. 45) among the provisions a constitutional complaint can be based on. 10 A third category of constitutional provisions make it a duty of citizens to protect the environment.13 Such a clause can be the basis for legislation restricting individual freedoms, e.g. economic activities causing harm to the environment. Whether they can be invoked in courts is again a question of national procedural law.

2. Protection of human rights 11

As not all national constitutions include provisions on the protection of the environment and as not all of these provisions can be invoked by individuals in the courts, litigation with the aim to promote measures against climate change is often based on (other) human rights.14 Many national constitutional courts as well as the jurisprudence of the European Court of Human Rights and international human rights bodies have recognized for decades that human rights cannot only be claimed against state action restricting individual freedom, but also impose a duty on the state to prevent violations 10 § 3 Austrian Federal Constitutional Act on sustainability, animal protection, comprehensive environmental protection, on water and food security as well as research, Art. 7bis Constitution of Belgium, Art. 15 Constitution of Bulgaria, Art. 3 Constitution of Croatia, Art. 6 Charter for the Environment of France, Art. 20a Basic Law of Germany, Art. 24 para. 1 Constitution of Greece, Art. XX para. 2 Constitution of Hungary, Art. 9 Constitution of Italy, Art. 54 Constitution of Lithuania, Art. 11bis Constitution of Luxembourg, Art. 9 para. 2 Constitution of. Malta, Art. 21 Constitution of the Netherlands, Art. 5, 74 Constitution of Poland, Art. 9 e), 66 Constitution of Portugal, Art. 135 para. 2 e) Constitution of Romania, Chap. 1 § 2 para. 3 Constitution of Sweden, Art. 44 para. 4 Constitution of Slovakia, Art. 72 para. 2 Constitution of Slovenia, Art. 45 para. 2 Constitution of Spain. 11 For Germany Kahl/Daebel, Climate Change Litigation in Germany, European Energy and Environmental Law Review Vol. 28 (2019), 67 (74). 12 Art. 23 para 2 no. 4 Constitution of Belgium, Art. 55 Constitution of Bulgaria, Art. 35 para 1 Czech Charter of Fundamental Rights and Freedoms, § 20 Constitution of Finland, Art. 1 Charter for the Environment of France, Art. 24 para 1 Constitution of Greece, Art. XXI para 1 Constitution of Hungary, Art. 115 Constitution of Latvia, Art. 66 para 1 Constitution of Portugal, Art. 35 para 1 Constitution of Romania, Art. 44 para 1 Constitution of Slovakia, Art. 72 para 1 Constitution of Slovenia, Art. 45 para 1 Constitution of Spain. 13 § 53 Constitution of Estonia, Art. 6 Charter for the Environment of France, Art. 53 para. 3 Constitution of Lithuania, Art. 86 Constitution of Poland, Art. 66 para. 1 Constitution of Portugal, Art. 44 para. 2 Constitution of Slovakia, Art. 45 para. 1 Constitution of Spain. 14 Limon, Human Rights and Climate Change: Constructing a Case for Political Action, Harvard Environmental Law Review Vol. 33 (2009), 439; Okubo, Climate Change Litigation: A Global Tendency, in Ruppel/Roschmann/Ruppel-Schlichting (eds.), Climate Change: International Law and Global Governance, Vol. I, 2013, 741; Foster/Galizzi, Human Rights and Climate Change: Building Synergies for a Common Future, in Farber/Peeters (eds.), Climate change law, 2016, 43; Knox, Human Rights Principles and Climate Change, in Gray/Tarasofsky/Carlarne (eds.), The Oxford Handbook of International Climate Change Law, 2016, 213; Hänni, Menschenrechtsverletzungen infolge Klimawandels, Europäische Grundrechte-Zeitschrift Vol. 46 (2019), 1.

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of human rights by other human actors or natural disasters.15 Although the foundation of duties to protect human rights is rarely disputed, the question what kind of duties can be derived, especially if they are imposed on the legislator, is often controversial. It is obvious that courts do not require that governments prevent all environmental harm but only those effects seriously affecting human rights.16 The very nature of climate change complicates the definition of positive obligations. 12 It is a global phenomenon caused by a very large number of contributors. The effects are mainly not exactly predictable as they only increase the probability of harmful events. Therefore the individuals concerned are often not yet known. The jurisprudence of the European Court of Human Rights provides a basis for climate change litigation but it does not yet answer all problems. Hence, it is not surprising that the results of existing national case law are very divergent.

III. The Jurisprudence of the European Court of Human Rights The European Court of Human Rights has developed a rich jurisprudence concerning 13 the protection against environmental harms, although no special rights concerning the environment are enshrined in the Convention or one of the protocols. Several proposals of the Parliamentary Assembly to create a protocol on environmental rights were not successful.17 Therefore, the respective rights had to be derived from other rights found in the provisions of the Convention. Most cases do not deal with interferences by state authorities but either with dangerous activities of private persons, especially enterprises (1.), or with natural disasters (2.). This jurisprudence does not answer all questions on whether a positive obligation to prevent harm caused by climate change can be derived from the respective human rights (3.).

1. The protection against dangerous activities For several decades, the Strasbourg Court has been following a jurisprudence devel- 14 oping positive obligations to protect against dangerous activities causing environmental harm.18 As there is no explicit right to health in the Convention, most of the complaints are based on Art. 8 ECHR stating that everyone has the right to respect for his private and family life, his home and his correspondence. From the wording as a “right to respect” the Court has concluded that it entails negative as well as positive obligations.19 The states must not only abstain from interferences by public authorities but they also have to protect individuals from infringements by others. In the landmark judgement Lopez Ostra v. Spain the Court has given the following reasoning: “severe environmental pollution may affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health.”20 15 Cf, e.g., Bates, The Evolution of the European Convention on Human Rights, 2010, 346‐7; Knox (fn. 14), 223. 16 Cullet, supra (fn. 4), 502. 17 Braig, Umweltschutz durch die Europäische Menschenrechtskonvention, 2013, 186‐188. 18 A summary of more than 100 cases in Braig, ibid, 7–181. 19 Hart, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights, 2004, 181‐186; Schabas, The European Convention on Human Rights, 2015, 367‐369. 20 ECtHR, Lopez Ostra v. Spain, Application no. 16798/90, Judgement 9 December 1994, mn. 51; cf also ECtHR, Tatar v. Romania, Application no. 67021/01, Judgement 27 January 2009, mns 85‐88.

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An individual complaint based on Art. 8 ECHR is admissible only if the victim can convince the Court that a present violation exists. If there is merely a risk of a future violation, the individual applicant is only a victim in the sense of Art. 34 ECHR if he or she produces reasonable and convincing evidence of the probability of the occurrence of a violation concerning him or her personally. Mere suspicions or conjectures are not enough in that respect. The applicant must be able to assert, arguably and in a detailed manner, that for lack of adequate precautions taken by the authorities the degree of probability of the occurrence of damage is such that it can be considered to constitute a violation, on condition that the consequences of the act complained of are not too remote.21 The Court will accept this only in wholly exceptional circumstances. Accordingly, it held in various cases that the minimum threshold of severity required in order to find a violation of Art. 8 of the Convention had not been attained. For instance, an application was inadmissible as being manifestly ill-founded because it had not been demonstrated that the strength of the electromagnetic field created by the high-voltage line had attained a level capable of having a harmful effect on the applicants’ private and family sphere.22 Even if the pollution affects the rights guaranteed by Art. 8 ECHR, this does not necessarily mean that the Convention is violated. From the very beginning, the Court has stressed that a fair balance has to be struck between the competing interests of the individual and of the community as a whole. Therefore, the state enjoys a certain margin of appreciation in any case.23 As the governmental decision-making process concerns complex issues of environmental and economic policy, the authorities must necessarily involve appropriate investigations and studies in order to allow them to strike a fair balance between the various conflicting interests at stake.24 Especially in cases involving environmental issues, the state must be allowed a wide margin of appreciation and be left a choice between different ways and means of meeting its obligations.25 The measures a state must take in order to prevent harm from the victims of environmental pollution may include a duty to introduce legislation if such a regulation is necessary to ensure an effective protection against the dangerous activity.26 If the state had at its disposal a number of other tools capable of preventing or minimising pollution, the Court may examine whether, in adopting measures of a general character, it complied with its positive duties under the Convention.27 If the effects of a harmful activity are so grave that they threaten human life, Art. 2 ECHR is also applicable.28 This has been recognized by the Court in a case related to an explosion of methane gas at a rubbish dump killing numerous persons, whereas the national authorities had not taken appropriate measures to address that risk. The Court argued that the “positive obligation to take all appropriate steps to safeguard life for the 21 ECtHR, Asselbourg and 78 others v. Luxembourg, Application no. 29121/95, Judgement 29 June 1999 (without margin numbers). 22 ECtHR, Calancea and others v. Moldova, Application no. 23225/05, Judgement 6 February 2018, mn. 31‐33. 23 ECtHR, Lopez Ostra v. Spain (fn. 20), mn. 51. 24 ECtHR, Hatton and others v. United Kingdom, Application no. 36022/97, Judgement 8 July 2003, mn. 128. 25 ECtHR, Dubetska and others v. Ukraine, Application no 30499/03, 10 February 2011, mn. 141. 26 ECtHR, Di Sarno v. Italy, Application no. 30765/08, Judgement 10 January 2012, mn. 106; Schabas, supra (fn. 19), 388: “appropriate regulatory framework” 27 ECtHR, Fadeyeva v. Russia, Application no. 55723/00, Judgement 9 June 2005, mn. 124. 28 Overview by Sicilianos, Preventing Violations of the Right to Life: Positive Obligations under Article 2 of the ECHR, Cyprus Human Rights Law Review Vol. 3 (2014), 117; Jacobs/White/Ovey, The European Convention on Human Rights, 7th ed. 2017, 161‐167.

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purposes of Article 2 … entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life”.29 But also in this case it is noteworthy that the Court did not acknowledge deficiencies in the national legislation, but only a lack of implementation.30

2. The protection against natural disasters A second constellation in the field of environmental law is the protection against natural 20 disasters. In that case the origin of the harm for the individual victims are not human actions, especially emissions by factories or other installations, but the effect of natural hazards, mainly extreme weather events. In these constellations, complaints have been based on the right to life (Art. 2 ECHR) and the right to property (Art. 1 Protocol No 1). The positive obligation of the states to protect human life derived from Art. 2 ECHR is 21 not only relevant if the danger for life is caused by humans, but it includes the protection against natural hazards if the circumstances of a particular case point to the imminence of a natural hazard that had been clearly identifiable, and especially where it concerned a recurring calamity affecting a distinct area developed for human habitation or use. The scope of the positive obligations, imputable to the state in the particular circumstances, depend on the origin of the threat and the extent to which one or the other risk is susceptible to mitigation.31 In the pertinent case, the Court recognized that there were serious administrative flaws because mud slides had occurred on several occasions and a causal link between the authorities’ omissions and the death of many people existed.32 Also the right of every person to the peaceful enjoyment of his possessions according 22 to Art. 1 Protocol No 1 includes positive obligations. The Court ruled that the states have to ensure in their domestic legal systems that property rights are sufficiently protected by law.33 Nevertheless, it draws a “distinction between the positive obligations under Article 2 of the Convention and those under Article 1 of Protocol No. 1 to the Convention. While the fundamental importance of the right to life requires that the scope of the positive obligations under Article 2 includes a duty to do everything within the authorities’ power in the sphere of disaster relief for the protection of that right, the obligation to protect the right to the peaceful enjoyment of possessions, which is not absolute, cannot extend further than what is reasonable in the circumstances. Accordingly, the authorities enjoy a wider margin of appreciation in deciding what measures to take in order to protect individuals’ possessions from weather hazards than in deciding on the measures needed to protect lives.”34 Therefore, in the mudslide case, a violation of Art. 1 Protocol No 1 was not recognized.

3. Open questions Global warming somewhat combines features of both protection against dangerous 23 activities as well as natural disasters. The rise of greenhouse gas emissions is the consequence of human action, as it is essentially the result of the carbon-based industrial civilisation. The main difference from the existing case law is that the effects of global warming are not in a close spatial relation to the emitting activities. All cases decided by the European Court of Human Rights were related to identifiable local sources of 29

ECtHR, Öneryildiz v. Turkey, Application no. 48939/99, Judgement 30 January 2004, mn. 89. Ibid, mn. 132. 31 ECtHR, Budayeva v. Russia, Application no. 15339/02, Judgement 20 March 2008, mn. 137. 32 Ibid, mn. 158. 33 ECtHR, Blumberga v. Latvia, Application no. 70930/01, Judgement 14 October 2008, mn. 67. 34 ECtHR, Budayeva v. Russia, supra (fn. 31), mn. 175. 30

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pollution or danger and thus also of local impact for identifiable persons. Instead, global warming is a result of global emissions. It is not possible to insulate specific sources responsible for specific harm to specific human beings.35 The consequences of climate change are essentially a higher probability of disasters like heat, dryness or flooding and not imputable to identifiable actors. 24 A second specific feature of positive obligations in the field of climate change is that additional state action will essentially require new legislation. It is quite obvious that this will entail restrictions on activities of enterprises as well as households using carbon as an energy source. Coal based energy plants have to be closed down, carbon-based traffic has to be restricted, carbon-based heating systems have to be replaced etc. The decarbonisation of our civilisation will not be possible without regulatory intervention. 25 The Strasbourg court has recognized that positive obligations to protect human rights in the field of environmental law include the duty to create an adequate regulatory framework.36 Nevertheless, no judgement has yet come to the conclusion that a failure to act of a national legislator has occurred. All successful complaints relate to duties of the national executive. The threshold to recognize an omission of the national legislator is higher because this implies a restriction of democratic decision-making processes.

IV. The legal problems of positive obligations The debate on how human rights are affected by climate change started almost twenty years ago.37 Meanwhile it is clear that climate change litigation based on human rights raises many complicated legal problems. The existing national case law that has been published until December 2019 shows that very different solutions can be found. Only in one of the cases reported in Europe the claim against the government has been successful, this was the landmark case of Urgenda vs. The Netherlands.38 Mostly the national courts rejected the claims in a final decision (UK: Plan B) or in decisions by lower courts (Switzerland: KlimaSeniorinnen; Ireland: Friends of the Irish Environment; Germany: Greenpeace et al.). Also a case in the General Court of the EU has not been successful. In other cases a court decision has not yet been taken (France: Notre Affaire à Tous et al. and Commune de Grande-Synthe; Germany: Friends of the Earth Germany et al.; Belgium: Klimaatzaak). 27 Although all court decisions mentioned deal with the duties to protect human rights against the adverse effects of climate change they are based in the national legal order and raise specific problems, e.g. concerning the admissibility. The following analysis will not cover all aspects but focus on some common problems related with the legal reasoning in order to derive positive obligations. The existing case law is mentioned where it is relevant for the problem discussed. 26

1. Individual rights 28

In climate change litigation many human rights are relevant. In this section an overview of the most important substantive rights, recognized in global as well as in regional European human rights instruments, is given. The rights of special groups like 35

Lewis, supra (fn. 8), 27. Cf supra (fn. 29); Braig, supra (fn. 17), 230. 37 Overview by Lewis, supra (fn. 8), 153‐157. 38 English summary of the final decision by the Hoge Raad (Supreme Court) available at https://www. rechtspraak.nl/Organisatie-en-contact/Organisatie/Hoge-Raad-der-Nederlanden/Nieuws/Paginas/DutchState-to-reduce-greenhouse-gas-emissions-by-25-by-the-end-of-2020.aspx (27.12.2019). 36

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indigenous people39 or children, granted in special human rights instruments, can be relevant, too, but they are outside the scope of this general report. Additional aspects as the right to adequate information on the environment as well as compensation or redress will not be treated either.40 In the jurisprudence of the European Court of Human Rights Art. 8 ECHR is the 29 main human right used in environmental cases, insofar as it protects the right to privacy and the home. The relation of the two elements of Art. 8 ECHR – privacy and home – is not always clear.41 Meanwhile, this aspect of Art. 8 ECHR is more or less an equivalent to the right to health not mentioned in the text of the convention. As far as this right to health is found in other international human rights instruments,42 it has also been used in order to found duties to protect against environmental harm.43 The human right to health also plays an important role in national jurisprudence. The German Federal Constitutional Court, for example, has developed its case law in environmental matters mainly on the basis of the duty to protect the physical integrity of every person.44 There is no serious doubt that the effects of global warming have a negative impact on the health of human beings. The rising number of heat waves is a grave menace especially for vulnerable persons, e.g. elderly people.45 Furthermore, the higher probability of thunder storms and floods increases the risk of injuries. It is quite obvious that these effects of global warming also menace human life. The 30 World Health Organisation has predicted that between 2030 and 2050, climate change will account for approximately additional 250,000 deaths each year.46 The right to life is protected by all human rights instruments. On the global level, Art. 6 ICCPR states that every human being has the inherent right to life. Art. 2 para 1 s. 1 ECHR reads: “Everyone’s right to life shall be protected by law.” In the jurisprudence of the European Court of Human Rights the right to life has been relevant as a duty to protect against the negative impact of human action as well as of natural disasters.47 Moreover, the right to property is relevant in climate change litigation. The right to 31 own property is mentioned in Art. 17 of the UN Declaration of Human Rights but not in the two international covenants. In consequence, the regional human rights instruments are mainly relevant.48 According to Art. 1 Protocol No 1 of the ECHR every natural or legal person is entitled to the peaceful enjoyment of his possessions. The European Court of Human Rights has recognized that this right may entail positive obligations, which may require the state to take the measures necessary to protect the right to property.49 But it has also stressed that the states enjoy a wide margin of 39 Cf Williams, The impact of climate change on indigenous people – the implications for the cultural, spiritual, economic and legal rights of indigenous people, The International Journal of Human Rights, Vol. 16 (2012), 648. 40 Cf Braig, supra (fn. 17), 305‐327; Lewis, supra (fn. 8), 17; Knox, supra (fn. 14), 221‐2. 41 Braig, supra (fn. 17), 278‐280. 42 Lewis, supra (fn. 8), 18‐21. 43 An overview is given by Shelton, Human Rights, Health and Environmental Protection: Linkages in Law and Practice, Human Rights & International Legal Discourse Vol. 1 (2007), 9. 44 The landmark case on the duty to protect against aircraft noise is summarized in English by Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany, 2nd ed. 1997, 129‐131. 45 Bähr/Brunner/Casper/Lustig, KlimaSeniorinnen: lessons from the Swiss senior women’s case for future climate litigation, Journal of Human Rights and the Environment Vol. 9 (2018), 194 (201). 46 World Health Organisation, Climate change and health, 2018, available at https://www.who.int/ news-room/fact-sheets/detail/climate-change-and-health (27.12.2019). 47 Cf supra (fn. 29), 31. 48 Overview by Lewis, supra (fn. 8), 28‐31. 49 ECtHR, Allen and others v. United Kingdom, Application no. 5591/07, Judgement 6 October 2009, mn. 55.

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appreciation in cases involving environmental and planning issues.50 In that case only the value of property was affected. But the negative impact of global warming, mainly flooding and thunder storms, can cause harm to the substance of buildings and other property. Furthermore, the rise of the sea level endangers the very existence of land property close to the sea shore.

2. Access to courts The enforcement of environmental rights as well as of positive obligations derived from other human rights depends on national judicial structures and legal traditions. We find much variety in court organisation as well as in procedural law. In some constitutions, provisions on the enforcement of environmental rights are included,51 but often this is not a constitutional issue. Three classes of potential claimants can be distinguished: persons suffering individual injury, any person and associations. 33 In many jurisdictions, rights are only enforceable by persons individually affected by an act or an omission of a public authority. Whether the actual and future effects of climate change can be claimed in a way to fulfil this requirement is controversial and depends on the specific provisions of the pertinent legal order. 34 A prominent example of this rule is Art. 263 para 4 TFEU requiring that a person may institute proceedings only against an act addressed to that person or which is of direct and individual concern to them, or and against a regulatory act which is of direct concern to them and does not entail implementing measures. Based on that provision, the General Court of the European Union has declared inadmissible an application by 36 individuals of families from various countries in the European Union (Germany, France, Italy, Portugal and Romania) and the rest of the world (Kenya, Fiji), and an association governed by Swedish law, which represents young indigenous Sami. They claimed, inter alia, that the Court order the Council and the Parliament to adopt measures under the legislative package regarding greenhouse gas emissions requiring a reduction in greenhouse gas emissions by 2030 by at least 50 % to 60 % compared to the levels of 1990, or by such higher level of reduction as the Court shall deem appropriate. The Court found that the applicants had not established that the contested provisions of the legislative package infringed their fundamental rights and distinguished them individually from all other natural or legal persons concerned by those provisions just as in the case of the addressee.52 The fact that the effects of climate change may be different for one person than they are for another does not mean, according to the Court, that standing to bring an action against a measure of general application has to be recognized. It also denied that a more generous interpretation is required by Art. 47 of the EU Charter of Fundamental Rights. 35 In Switzerland, a group of elderly women addressed the Federal Administrative Court with the claim to force the national government to introduce new measures to combat global warming.53 Although they argued that elderly persons are under a higher risk of detrimental effects of heat waves, the Swiss court did not find sufficient scientific evidence for that claim, therefore denied that this group had a special interest and dismissed the application as inadmissible.54 In the same line of argument the German 32

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ECtHR, ibid, mn. 60. Cf Lewis, supra (fn. 8), 49‐52. 52 GC, Armando Ferrão Carvalho and others v. Parliament and Council, Case T‐330/18, Judgement of 8 May 2019, mns 49‐55. 53 The arguments of the claimants are presented by Bähr/Brunner/Casper/Lustig, supra (fn. 45), 194. 54 Bundesverwaltungsgericht (Federal Administrative Court), Application A-2992/2017, Judgement of 27 November 2018, available at https://www.bvger.ch/bvger/de/home/rechtsprechung/entscheiddatenbank-bvger.html (27.12.2019). 51

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Administrative Court of Berlin has decided that the claimants had not demonstrated that they were more affected by climate change than other people.55 Many legal orders have introduced a right of associations to enforce environmental law in the national courts. For the 47 European states having ratified the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention), adopted in Aarhus, Denmark, on 25 June 1998, there is an international obligation to guarantee access to court for non-governmental organisations promoting environmental protection. National law may add specific requirements, e.g. a registration procedure, but any organisation meeting the conditions has to be deemed to have an interest for going to court in environmental cases. The implementation of the convention is monitored by a compliance committee. As in France there is no direct access of citizens to the Constitutional Court (Conseil Constitutionnel), a group of four associations and a small town have asked administrative courts to decide that government inaction violates the duty to act against climate change.56 Although no decision has yet been taken, there are strong doubts that the powers of the administrative judge are adequate for this far reaching purpose.57 In the famous case Urgenda v. The Netherlands standing is based on an even more generous clause in the Dutch Civil Code providing that a foundation or association with full legal capacity may bring an action to court pertaining to the protection of general interests or the collective interests of other persons, in so far as the foundation or association represents these general or collective interests based on the objectives formulated in its by-laws. The court of appeal accepted the argument that the foundation Urgenda is acting on behalf of the interests of the current generation of Dutch nationals and individuals subject to the state’s jurisdiction.58 Some jurisdictions even grant a right to everyone to challenge decisions in the field of environmental law. A right of any person to take action in this field is enshrined, for instance, in the constitutions of Bolivia, Ecuador, Kenya and Mongolia and recognized in several other countries in South America, Africa and Asia.59 Nevertheless in Europe such a broad access to courts is not recognized.

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3. Causation One of the major problems of most environmental cases is the establishment of a 40 causal link between the act or omissions the complaint is targeting and the impact on the human right invoked.60 Often, the causal connection of a degradation of environmental conditions and the harm individuals are suffering is not evident but based on an evaluation of probability.

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VG Berlin, Judgement of 31 October 2019, 10 K 412.18, juris. Notre Affaire à Tous et al., summary in English available at https://notreaffaireatous.org/wp-content/ uploads/2019/05/Brief-juridique-ADS-EN-1.pdf (27.12.2019). 57 Rotoullie, Le contentieux de la légalité, Revue française de droit administratif Vol. 35 (2019), 644. 58 Gerechtshof Den Haag, Application no. C/09/456689, Judgement 9 October 2018, mn. 37; English translation available at https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHDHA:2018:2610&showbutton=true&keyword=200.178.245%2f01 (27.12.2019); the problem is discussed in detail by Spijkers, The Urgenda case: a successful example of public interest litigation for the protection of the environment?, in Voigt/Makuch (eds.), Courts and the Environment, 2018, 305 (309‐313). 59 Cf Lewis, supra (fn. 8), 50‐51; May/Daly, Judicial handbook on environmental constitutionalism, 2017, 133‐135. 60 Van Dyke, A Proposal to Introduce the Right to a Healthy Environment into the European Convention Regime, Virginia Environmental Law Journal Vol. 13 (1993/94), 323 (344). 56

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The European Court of Human Rights has argued in several cases involving the right to life that the causal connection between a given harm and a state’s action or inaction must be “likely”.61 In some cases concerning Art. 8 ECHR it has required that applicants produce reasonable and convincing evidence of the probability of the occurrence of a violation concerning him or her personally.62 In other cases, the court has used the precautionary principle in order to reduce the burden of proof.63 It is quite obvious that the court uses a flexible approach. In each case, the question of which level of risk is acceptable has to be answered. In that respect the importance of the rights invoked is relevant and thus in cases involving the duty to protect the right to life the level of certainty that harm will be caused may be lower than in those a violation of Art. 8 ECHR is claimed. 42 In climate change litigation the petitioners usually did not yet suffer personal harm, but they contend that there is a duty to adopt measures in order to prevent future violations of human rights. The consequences of global warming cannot be predicted in such a precise manner that it is possible to identify individuals who will certainly be victims. Accordingly, the claims depend on whether a court can be convinced that there is a relevant level of probability that the human rights invoked will be affected in the future. 43 The need for a clearly established link of causation also depends on what kind of petition is at stake. If procedural law allows a NGO or any person without individual concern to take action in court, there is no necessity to argue with the specific situation of the claimant. Whereas if it is required that the petitioner has to be individually concerned, a sufficient probability must be established that he or she will be affected in a foreseeable way. In the Swiss, the German as well as in the EU case, the courts decided that this had not been demonstrated.64 41

4. Scope of obligations All climate change litigation based on the concept of positive obligations has to address the problem of what kind of action can be required from national authorities. Usually courts are inclined to accept a wide margin of appreciation of elected bodies to select measures in order to protect human rights. Especially if these measures adversely affect other human rights by imposing duties on individuals or undertakings, the conflicting positions have to be balanced.65 Given the global and complex nature of climate change, this question of defining duties to act has many aspects. Is there a necessity of national action as global warming is caused by emissions all over the world? Are only measures to reduce emissions to be implemented or are alternatives to be accepted, e.g. the capture and storage of greenhouse gases or the promotion of carbon sinks inside or outside the country? What scope of reduction can be required? 45 The fact that climate change is a global phenomenon and no state alone can stop global warming has been used for the argument that individual human rights protection is not an appropriate means to cope with such an international problem.66 The question whether states have obligations to protect the rights of people living outside their 44

61 ECtHR, L.C.B. v. United Kingdom, Application no. 23413/94, Judgement 9 June 1998, mn. 38; ECtHR, Öneryildiz v. Turkey, supra (fn. 29), mn. 93; ECtHR, Budayeva v. Russia, supra (fn. 31), mn. 147. 62 Cf fn. 21. 63 ECtHR, Tatar v. Romania, supra (fn. 20), mn. 109; for Germany cf Kahl/Daebel, supra (fn. 11), 74. 64 Cf fn. 52, 54, 55. 65 Roschmann, Climate Change and Human Rights, in Ruppel/Roschmann/Ruppel-Schlichting (eds.), Climate Change: International Law and Global Governance, Vol. I, 2013, 203 (236‐240). 66 Wegener, Urgenda – Weltrettung per Gerichtsbeschluss?, Zeitschrift für Umweltrecht Vol. 30 (2019), 3 (11).

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borders is indeed very controversial.67 Nevertheless, this very fundamental objection has not been accepted by several national courts, because every state has a duty to protect the human rights of the people living in the respective country. The positive obligation entails without doubt that a state has to protect the rights of all people living within its jurisdiction. The fact that harm to the inhabitants is also caused by human action in other states does not qualify the duties of the home state. The general goal to keep global warming well below 2° C can only be reached if all states take action, as stated clearly in the Paris Agreement. Besides, also a smaller state cannot disregard the obligation to take precautionary measures by arguing that it makes only a minor contribution to all emissions.68 A major problem of climate change litigation is the definition of what kind of obligation a court can impose on national authorities. As there is not the one and only measure to stop global warming but a wide range of possible reactions, the question is whether a court can select the proper means a government has to introduce. The first question is whether human rights protection requires mitigation measures or if adaptation is sufficient. Without doubt, states have to take adaptation measures necessary to protect human rights if the effects of global warming are already harmful to the health, property or even the life of people living in that state. But this does not mean that mitigation is not required. In the Urgenda case, the courts clearly stated that only mitigation is appropriate to protect its citizens from the consequences of climate change to a limited level. “If the current greenhouse gas emissions continue in the same manner, global warming will take such a form that the costs of adaptation will become disproportionately high. Adaptation measures will therefore not be sufficient to protect citizens against the aforementioned consequences in the long term.”69 If mitigation measures are necessary, the next question is whether they are to be taken inside or outside the country where the petition is filed. Art. 6 of the Paris Agreement permits the use of internationally transferred mitigation outcomes. Therefore, states may use reductions in other countries to achieve nationally determined contributions under the agreement provided that it is authorized by the states involved. Nonetheless, it is evident that this option does not question the duty of all states to pursue a path that ensures achieving the net zero emission target necessary to reach the global ‘well below 2° C’ target.70 National mitigation efforts can target the reduction of emissions by regulations limiting the emission of greenhouse gases or by using new technologies to avoid that emissions reach the atmosphere or by increasing carbon sinks. In the Urgenda case the court argued that CO2 capture and storage techniques are not sufficiently developed and hence not likely to be applied in the short term and in time to reach short term reduction targets.71 It did not discuss the option to strengthen carbon sinks, maybe because this alternative was not introduced. At least in some countries a massive investment in new forests may help to reduce the greenhouse gas emissions.72 67

Knox, supra (fn. 14), 226; Hänni, supra (fn. 14), 16‐7. Rechtbank Den Haag, Application no. C/09/456689, Judgement 24 June 2015, no. 4.79; English translation available at https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBDHA:2015:7196&showbutton=true&keyword=C%2f09%2f456689 (27.12.2019); Spijkers, supra (fn. 58), 321; Bähr/Brunner/Casper/Lustig, supra (fn. 45), 213; unclear Knox, supra (fn. 14), 227‐9. 69 Rechtbank Den Haag, supra (fn. 68), no. 4.75; cf also Gerechtshof Den Haag, supra (fn. 58), no. 59. 70 Bähr/Brunner/Casper/Lustig, supra (fn. 45), 207. 71 Rechtbank Den Haag, supra (fn. 68), no. 4.72. 72 Simonis, “Energieoption” plus “Waldoption”. Plädoyer für eine Doppelstrategie der Klimapolitik, Zeitschrift für Umweltpolitik & Umweltrecht Vol. 42 (2019), 358. 68

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If courts accept that human rights require national measures to reduce greenhouse gas emissions, they face the question of which scope of mitigation is necessary. In the Urgenda case, the District Court ordered “the State to limit the joint volume of Dutch annual greenhouse gas emissions, or have them limited, so that this volume will have reduced by at least 25 % at the end of 2020 compared to the level of the year 1990”.73 This ruling was upheld by the Court of Appeal. The District Court clarified that the reduction target can be based on the standard which according to the latest scientific knowledge and in the international climate policy is required for Annex I countries to meet the 2° C target.74 The postponement of mitigation efforts would lead to cumulation effects and therefore increase the risk of climate change hazards. Nonetheless the court saw insufficient grounds to compel the state to adopt a higher level than the minimum level of 25 %, without specifying these grounds. The result is thus based on the principle of fair distribution requiring that all states have to act according to their contribution to global emissions.75 The scope of the positive obligation to protect human rights is connected with the internationally agreed targets, based on scientific advice. 51 In the British Plan B case, the High Court upheld the decision by the Secretary of State for Business, Energy and Industrial Strategy not to revise the 2050 carbon target under the Climate Change Act 2008, which demands a reduction of 80 % compared to the emissions of 1990. The claimants relied on the rights conferred by Articles 2 and 8 of the ECHR, and by Article 1 of the First Protocol, both individually and in conjunction with Article 14 and submitted that the Secretary of State was in breach of his positive obligations to uphold the Claimants’ Convention rights. Justice Supperstone rejected this claim asserting that the executive had a wide discretion to assess the advantages and disadvantages of any particular course of action, not only domestically but as part of an evolving international discussion.76 50

5. Separation of powers The ultimate problem raised by all petitions based on the concept of positive obligations to protect human rights is the compatibility with the separation of powers. There is a lot of controversy on whether courts are entitled to order measures to be taken by the government or even by parliament. 53 Some petitioners have chosen the alternative to address the national executive. They claim that the government either has to take action based on existing legislation77 and/ or has the duty to introduce new legislation.78 In this scenario the courts have to decide on executive action which is not an extraordinary situation. Nevertheless the question remains whether a duty to make proposals to the parliament is an adequate means to protect human rights. 54 As especially measures to curb emissions by private undertakings or households will usually require legislation, petitions requiring action by a parliament raise difficult questions of the relation between independent judges and elected politicians. However, it is obvious that there is no universal model of the separation of powers, but that all 52

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Rechtbank Den Haag, supra (fn. 68), no. 5.1. Ibid., no. 4.83‐86. 75 Hänni, supra (fn. 14), 15. 76 High Court of England and Wales, Application no. CO/16/2018, Judgement 20 July 2018, mn. 49, available at http://www.bailii.org/ew/cases/EWHC/Admin/2018/1892.html (27.12.2019). 77 Cf the British Plan B case, ibid., the Irish case Friends of the Irish Environment https://www. friendsoftheirishenvironment.org/climate-case (27.12.2019), or the French case Notre Affaire à Tous et al., supra (fn. 56). 78 Cf the Swiss KlimaSeniorinnen case, supra (fn. 54) and the German Greenpeace case, supra (fn. 55). 74

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constitutions have to define how they organise the relation between the main institutions. Especially the relation between the legislator and the courts is a very controversial topic with very diverse solutions. Constitutional courts have been created in a majority of European countries but some of the old democracies in North Western Europe do not accept this institution.79 If there is a constitutional court, the ways to file a petition and the powers of the courts are far from uniform. Therefore, only some general points can be discussed here. Whether an action against a national parliament is admissible depends on national 55 procedural law. In Germany, for example, independent from the case in the Administrative Court of Berlin also a constitutional complaint has been lodged with the aim to declare the existing legislation insufficient to avoid harm to human rights by global warming.80 While the Federal Constitutional Court has acknowledged in many decisions that human rights may include a duty to enact new legislation, no petition bringing forward this claim in the field of environmental law has ever been successful. The existing legislation was always found to be sufficient and therefore within the margin of appreciation of the parliament.81 In the Urgenda case, the court discarded the warning of the government not to 56 exceed its powers based on the trias politica with the argument that it only implements the duties of the European Convention on Human Rights, which according to the Dutch constitution is above the national law.82 For other constitutions not accepting the primacy of international law the situation is more complicated. The margin of appreciation which is recognized as a fundamental feature of positive 57 obligations in the field of environmental law can be respected if the courts do not order what kind of legislative or administrative action must be taken. The claim of the petitioners in several national cases aimed at a determination that existing measures were not sufficient. No court was asked to act as a legislator but to declare that action already implemented is not enough to effectively protect human rights. Such an assessment leaves the legislator or the government enough choice between several options how to curb emissions, e.g. by the prohibition of certain carbon-based techniques, carbon taxes, new emission trade schemes or subsidies for carbon free technologies.

V. Conclusion The number of cases on human rights obligations to work against global warming has 58 been increasing enormously in the past few years. Environmental organisations but also individuals in many countries are approaching administrative, civil or constitutional courts claiming that states violate the duty to protect their citizens from harm caused by climate change. Whereas the concept that states are obliged to protect human rights against adverse effects of private action is accepted in most of the jurisdictions, the definition of the scope of duties is very controversial. Although only few of the petitions in national courts are successful, climate cases 59 always aim at the public debate as well. As an example of strategic litigation petitioners in climate cases seek to influence not only the judges but also the national political

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Brief overview by Weber, European Constitutions Compared, 2019, 167‐172. Summary in English at http://climatecasechart.com/non-us-case/friends-of-the-earth-germany-association-of-solar-supporters-and-others-v-germany/ (27.12.2019). 81 Kahl/Daebel, supra (fn. 11), 75. 82 Gerechtshof Den Haag, supra (fn. 58), no. 69; confirmed by the Hoge Raad, supra (fn. 38). 80

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forum.83 Even if a case is lost, it may have influence on decisions in government or in parliament because it increases public pressure to take action. 60 It will take some time until final decisions by highest national courts or regional human rights courts will be delivered. If positive obligations of national authorities to act against global warming can be successfully claimed, courts will be able to speed up mitigation measures. It is clear, though, that the unprecedented challenge of climate change will not be met if only some states with courageous (others will say activist) judges implement the necessary measures. 61 In the end, the global effects of climate change require joint action on the global level. Therefore, more international cooperation based on solidarity is needed.84 Some scientists even fear that the unimpeded rise of temperatures in the atmosphere and in the sea could endanger the survival of mankind.85 Therefore it should be clear that the protection of human rights is not a local problem, but requires completely new patterns of international regulation.86 83 Peel/Osofsky, Litigation as a Climate Regulatory Tool, in Voigt (ed.), International Judicial Practice on the Environment: Questions of Legitimacy, 2019, 311; Graser, Strategic Litigation – oder: Was man mit der Dritten Gewalt sonst noch so anfangen kann, Rechtswissenschaft Vol. 10 (2019), 371. 84 Cullet, supra (fn. 4), 511‐514. 85 Cf, e.g., Spratt/Dunlop, Existential climate-related security risk, 2019, available at https://docs. wixstatic.com/ugd/148cb0_b2c0c79dc4344b279bcf2365336ff23b.pdf (27.12.2019). 86 Proposals are made, e.g., by Abbott, Strengthening the Transnational Regime Complex for Climate Change, Transnational Environmental Law Vol. 3 (2014), 55; Groß, Postnationale Demokratie – Gibt es ein Menschenrecht auf transnationale Selbstbestimmung?, Rechtswissenschaft Vol. 2 (2011), 125.

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PART 2 PROCEDURAL ISSUES AND CONFLICT OF LAWS E. Arbitration proceedings Bibliography: Blackaby/Partasides QC/Redfern/Hunter, Redfern and Hunter on International Arbitration, 6th ed., Oxford University Press, 2015; Boom/Richards/Leonard, Climate Justice: The international momentum towards climate litigation, Heinrich Böll Stiftung & Climate Justice Programme 2016, https:// www.boell.de/en/2016/11/15/climate-justice-international-momentum-towards-climate-litigation; Born, International Commercial Arbitration, 2nd ed., Kluwer Law International, 2014; Brown, International, Mixed and Private Disputes Arising under the Kyoto Protocol, Journal of International Dispute Settlement, Vol. 1, No. 2 2010, 447–473; Carlarne, Rethinking a Failing Framework: Adaptation and Institutional Rebirth for the Global Climate Change Regime, 25 Geo. Int’l Envtl. L. Rev. 1 2013; Ellis, Has International Law Outgrown Trail Smelter?, in: Bratspies/Miller (eds.), Transboundary Harm in International Law: Lessons from the Trail Smelter Arbitration, Cambridge University Press, 2006, pp. 56–65; European Commission, A future multilateral investment court, Memo/16/4350 2016, https://ec.europa.eu/ commission/presscorner/detail/en/MEMO_16_4350; Garimella, Environmental Dispute Resolution, ADR Methods and the PCA Arbitration Rules, in: ILI Law Review, Summer 2016, 199–222; Gerrard, What Litigation of a Climate Nuisance Suit Might Look Like, Sustainable Development Law & Policy, Vol. 12, Issue 2 2012, 12–14, 56; Hay, Winds of Change? Confidentiality in International Commercial Arbitration, in: Gonzalez-Bueno (ed.), in: 40 under 40 International Arbitration, Editorial Dickinson, 2018, p. 211; Hesse, Schiedsgerichtsbarkeit in der Investitionsgüterindustrie – eine empirische Untersuchung, in: Briner (ed.), Law of international business and dispute settlement in the 21st century, Liber Amicorum for KarlHeinz Böckstiegel, Heymanns 2001, p. 277; ICC Commission Report 2019, Resolving Climate Change Related Disputes through Arbitration and ADR, p. 59; International Bar Association, Achieving Justice and Human Rights in an Era of Climate Disruption, Climate Change Justice and Human Rights Task Force Report 2014, pp. 14, 139, 145; Kalas/Herwig, Dispute Resolution under the Kyoto Protocol, Ecology Law Quarterly 27 2000, 53; Levine, Adopting and Adapting Arbitration for Climate Change Related Disputes, The Experience of the Permanent Court of Arbitration, ICC, Dispute Resolution and Climate Change 2017, 27; Levine, Climate Change Disputes: The PCA, The Paris Agreement and Prospects for future Arbitrations, Transnational Dispute Management, Vol 14, Issue 1 2017; Lew/Mistelis/Kröll, Comparative International Commercial Arbitration, Kluwer Law International, 2003; Luhmann/Arens, Von den flexiblen Mechanismen des Kyoto Protokolls zu den kooperativen Ansätzen des Übereinkommens von Paris, Zeitschrift für Umweltpolitik und Umweltrecht, Sonderausgabe zur Pariser UN-Klimakonferenz, Jg. 39 2016, 95–101; Meshel, Optional Rules for Arbitration of Disputes relating to Natural Resources and/or the Environment, Oxford Public International Law 2016, https://opil.ouplaw.com/view/ 10.1093/law-mpeipro/e2810.013.2810/law-mpeipro-e2810; Miles, Research Handbook on Environment and Investment Law, Edward Elgar, 2019; Mistelis, International Arbitration – Corporate Attitudes and Practices – 12 Perceptions Tested: Myths, Data and Analysis Research Report, 15 Am Rev. Int’l Arb. 525 (2004); Peppers, Is climate change too political for courts?, Georgetown Environmental Law Review March 31st 2019; Shreyan, Transboundary Water Disputes, ETH Zurich Research Collection 2013, https://doi. org/10.3929/ethz-a-009989936; Vespa, An Alternative to an International Environmental Court – The PCA’s Optional Arbitration Rules for Natural Resources and/or the Environment, The Law and Practice of International Courts and Tribunals 2003, p. 295; Wirth, The Trail Smelter Dispute: Canadians and Americans confront transboundary pollution, Environmental History Volume 1, Issue 2 1996, 34–51; Wolff, Grundzüge des Schiedsverfahrensrecht, JuS 2008, 108.

Contents I. Introduction ..................................................................................................... II. Climate change disputes................................................................................ 1. Disputes resulting from material damages ........................................... 2. Disputes over natural resources .............................................................. 3. Disputes resulting from international climate treaties....................... 4. Disputes resulting from transformation of the economy..................

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Part 2. Procedural issues and Conflict of Laws 5. Climate finance disputes ........................................................................... 6. Corporate disputes ..................................................................................... III. Arbitration proceedings................................................................................. 1. Arbitration law ............................................................................................ 2. Enforceability............................................................................................... 3. Arbitration agreement ............................................................................... 4. Confidentiality............................................................................................. 5. Flexibility of proceedings .......................................................................... 6. Selection of arbitrators .............................................................................. 7. Involvement of third parties .................................................................... 8. Involvement of states................................................................................. 9. Applicable law ............................................................................................. 10. Claims based on tort.................................................................................. IV. Suitability of arbitration proceedings for climate change disputes.............................................................................................................. 1. Political and public law claims................................................................ 2. Claims for damages and for specific performance against companies..................................................................................................... 3. Disputes over natural resources .............................................................. a) Trail Smelter arbitration...................................................................... b) Indus Waters Kishenganga arbitration ............................................ 4. Disputes arising from international climate protection treaties ...... a) UNFCCC................................................................................................. b) Kyoto Protocol....................................................................................... c) Paris Agreement .................................................................................... 5. Disputes resulting from the implementation of international climate treaties............................................................................................. a) Kyoto Protocol....................................................................................... b) Paris Agreement .................................................................................... 6. Disputes due to transformation towards Green economy................ 7. Disputes arising from climate finance ................................................... a) Adaptation Fund ................................................................................... b) Green Climate Fund............................................................................. 8. Corporate disputes ..................................................................................... V. Arbitral institutions and climate change ................................................... 1. Permanent Court of Arbitration, The Hague ...................................... 2. International Court of Arbitration of the ICC, Paris......................... a) Securing relevant expertise.................................................................. b) Faster and more effective procedures............................................... c) Integration of climate change policy, commitments or laws...... d) Transparency.......................................................................................... e) Third party involvement ..................................................................... VI. Summary...........................................................................................................

9 10 11 13 15 19 20 24 25 27 29 30 31 32 33 36 40 42 44 45 45 50 53 56 57 64 67 70 72 78 88 93 94 99 105 106 107 108 109 110

I. Introduction 1

Climate change will lead to disputes and will trigger litigation. This is the topic of this book. However, climate change will also lead to a rise of arbitration proceedings. Arbitration is a globally recognised and well established way of resolving disputes and an alternative form of dispute resolution (ADR). It is the most important alternative to state court litigation and enables parties to resolve their disputes with binding effect and without consensus on the matter. It is therefore evident that also arbitration will play an important role in resolving climate change disputes.

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The following chapter will examine the following questions: 2 – Part III: How does arbitration work and what procedural options are provided by arbitration to resolve disputes? – Part IV: Is arbitration suitable for resolving climate change disputes? – Part V: How do arbitral institutions react to the expected climate change disputes?

II. Climate change disputes Climate Change disputes concern a wide range of issues. Some of the disputes are a 3 direct result of climate change, others arise indirectly therefrom. The main disputes are to be expected from the following constellations:

1. Disputes resulting from material damages Climate change is causing direct material damage (through heat, drought, rising sea 4 levels, extreme weather events, etc.). Affected parties include individuals, companies, cities and countries. These parties often ask themselves whether there is anyone who can be held liable for the damage and whose conduct can be influenced by means of law. Today, a large number of court cases are pending to hold the (alleged) contributors to climate change accountable or oblige them to change their conduct.

2. Disputes over natural resources Climate change reduces the access to and the availability of intact natural resources 5 (water, arable land, clean air, etc.). The often existential question of having access to intact natural resources causes disputes.

3. Disputes resulting from international climate treaties The UN Member States have undertaken to combat climate change through interna- 6 tional treaties. The most important treaties are the United Nations Framework Convention on Climate Change (UNFCCC)1, the Kyoto Protocol2 and the Paris Agreement3. Some of these treaties set out a state’s duty to act. Therefore, disputes can and will arise from these treaties. Furthermore, these international treaties expect private parties and non-governmen- 7 tal organisations (NGOs) to play a crucial role in fulfilling the treaties’ objectives. The involvement and investment from the private sector happens through contractual relationships between various different players. Contractual disputes over liability for non-performance of these contracts may and will result.

4. Disputes resulting from transformation of the economy A political process has begun to transform the economy towards CO2-neutrality. 8 This transformation will produce winners and losers due to changes in the legal framework, increased regulation and political action. A huge number of contracts will be concluded amongst companies and other economic players in order to re-organise 1 Cf https://unfccc.int/files/essential_background/background_publications_htmlpdf/application/pdf/conveng.pdf. 2 Cf https://unfccc.int/resource/docs/convkp/kpeng.pdf. 3 Cf https://unfccc.int/files/essential_background/convention/application/pdf/english_paris_agreement. pdf.

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the various business-models towards a sustainable carbon free business. Disputes may and will be the result.

5. Climate finance disputes 9

Transforming the economy and improving climate protection also requires massive financial investments. We are currently observing one of the largest investment programmes of all times, in which very substantial cash flows are being moved, distributed and invested to counteract climate change. Contracts are being concluded to furnish, collateralise and distribute cash flows. From all these contracts disputes may arise.

6. Corporate disputes 10

Finally, there are numerous corporate disputes by which shareholders or other stakeholders try to influence the strategy and management of a company, hold the management board liable for climate-damaging decisions or merely obtain information associated with climate change. This chapter will examine, whether arbitration is a suitable option for the resolution of these disputes.

III. Arbitration proceedings In disputes, parties are generally free to come to a mutual agreement by way of negotiation, mediation, conciliation and other forms of dispute resolution. However, if a mutual agreement cannot be reached, state jurisdiction is often the only way to obtain a binding and enforceable decision. As an alternative, most national procedural laws allow for private arbitration if the parties have agreed so. 12 There are two main areas in which arbitration is used at present: – Arbitration is very extensively used in commercial disputes between companies and other private parties.4 In commercial arbitration, the parties decide to have their legal dispute resolved by a private arbitral tribunal instead of state courts. The parties may individually define the rules and framework conditions of these proceedings. Such arbitration proceedings take place both in a national setting as well as in the context of an increasingly globalised economy. Arbitration tends to be the preferred way of resolving international trade disputes. According to estimates5, 70 % to 90 % of international contracts contain arbitration clauses. – Another important area in which arbitration is used are international treaties between states. Within this group investment treaties (BITs/MITs) are the main scope of application (Investor-State-Disputes). Such investment arbitrations have been explained in detail in the previous chapter. However, arbitration agreements are often also contained in International Environmental and Climate Treaties. Such arbitration agreements will be discussed in more detail below. 11

Cf Born, International Commercial Arbitration, 2nd ed., Kluwer Law International, 2014, p. 93. Cf School of International Arbitration at Queen Mary, University of London: 2018 International Arbitration Survey: The Evolution of International Arbitration, p. 5: The survey (based on 922 questionnaire responses and 142 in-person or telephone interviews) found that 97 % of respondents indicate that international arbitration is their preferred method of dispute resolution; Mistelis, 15 Am. Rev. Int’l Arb., (2004), 525 (538 et seq.); Hesse, in: Briner, Robert (ed.), Liber Amicorum Karl-Heinz Böckstiegel, 2001, 277 (280); Wolff, JuS 2008, 108. 4 5

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Before going into detail on the extent to which climate change disputes are suitable for arbitration, the legal basis for (commercial) arbitration proceedings should briefly be described:

1. Arbitration law Arbitration proceedings are private proceedings which are (largely) outside state 13 jurisdiction.6 Most of the national civil procedural laws allow such proceedings to be carried out as an alternative to state court jurisdiction and contain specific provisions on implementing arbitration proceedings. Such procedural laws are often based on a model law specifically drawn up for this purpose in 1985, namely the UNCITRAL Model Law on International Commercial Arbitration.7 As a general rule, any proprietary claim may be the subject of an arbitration agreement. 14 Arbitration agreements on non-proprietary claims are only admissible if the parties are entitled to settle on the subject of the dispute.8 In principle, arbitration proceedings are permitted in situations in which the parties do have free rein in their legal relationships. This right is a direct expression of the principle of private autonomy.9

2. Enforceability If arbitration proceedings are permissible and if the proceedings are in line with the 15 minimum standards required, the arbitral award will be legally binding between the parties and will produce the same effect as a state court judgment.10 The equivalence between an arbitral award and a state court judgment initially means 16 that the arbitral award can be enforced in the country in which it is made in the same way as a national court judgment.11 It is also possible for the arbitral award to be enforced in a country other than the one in which arbitration proceedings were held.12 In 1958, the United Nations concluded the Convention on the Recognition and Enforcement of Foreign Arbitral Awards.13 146 countries have joined the New York Convention to date.14 No other international treaty or legal source has influenced the success of arbitration proceedings in the same manner as the New York Convention. Under the New York Convention the parties agreed to enforce a foreign arbitral award if the country in which it was issued has agreed for its part to enforce arbitral awards from the respective other country (reciprocity clause).15 Under Art. V New York Convention, enforcement of an arbitral award may only be refused if there is no valid arbitration agreement, the arbitral award goes beyond the scope of the arbitration 6

Cf Born, supra (fn. 4), 89 et seq. According to the UNCITRAL Secretariat, legislation based on the Model Law has been adopted in 80 States in a total of 111 jurisdictions; cf https://uncitral.un.org/en/texts/arbitration/modellaw/commercial_ arbitration/status. 8 Typical nonarbitral subjects are, e.g. disputes involving criminal matters, trade sanctions, consumer claims, labor or employment grievances, cf Born, , supra (fn. 4), 944 et seq. 9 Cf Blackaby/Partsaides QC/Redfern/Hunter, Redfern and Hunter on International Arbitration, 6th ed., Oxford University Press, 2015, p. 71. 10 Cf UNCITRAL Model Law on International Commercial Arbitration, Explanatory Note by the UNCITRAL secretariat, p. 36: Under Article 35 (1) Model Law any arbitral award, irrespective of the country in which it was made, shall be recognized as binding and enforceable, subject to the provisions of Article 35 (2) and of Article 36 of the Model Law. 11 Ibid. 12 Redfern/Hunter, supra (fn. 9), 610 (in general on recognition and enforcement of arbitral awards: 605 et seq.). 13 Cf https://www.uncitral.org/pdf/english/texts/arbitration/NY-conv/New-York-Convention-E.pdf. 14 Cf http://www.newyorkconvention.org/list+of+contracting+states. 15 Cf The “Objectives” and Art. 1 of the New York Convention. 7

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agreement, the composition of the arbitral tribunal was not in accordance with the agreement or law, the agreed arbitration proceedings were not complied with, the arbitral award has already been annulled in a country where the award was made, or if the arbitral award breaches the public policy of the state of enforcement. 17 On the other hand, there are no grounds for refusal of enforcement if the law is incorrectly applied or the judgement contains errors of substance. Therefore, a state court does not review the content of the arbitral award. 18 The importance of the New York Convention becomes especially clear if one compares the enforcement options of foreign state court judgments. Enforcing foreign state court judgments is often only possible under restricted conditions. Enforcing foreign court judgments presupposes that bilateral agreements exist or that reciprocity is guaranteed. However, as this is frequently not the case, it is often impossible to enforce state court judgments abroad.16 Thus, the enforceability of arbitral awards is a key success factor for arbitration worldwide.

3. Arbitration agreement 19

All arbitration proceedings require that the parties have agreed on arbitration or are obliged on the basis of other standards to resolve disputes with regard to a specific legal relationship before an arbitral tribunal. The basis for arbitration proceedings is thus always an arbitration agreement. Certain form requirements must be observed. Only a valid arbitration agreement can establish the jurisdiction of an arbitral tribunal.17 Enforcement under an arbitral award also requires a valid arbitration agreement, pursuant to Art. IV 1. (b) in conjunction with Art. II New York Convention. However, an arbitration agreement may also be specified in the articles of association of a company to which all the shareholders (and the company) are bound, or in the bylaws of associations, organisations and other bodies. In such cases, the articles of association or bylaws form the necessary contractual basis for conducting arbitration proceedings.

4. Confidentiality Another important factor which contributes to the success of arbitration is the confidentiality of the proceedings. Not all arbitration rules specify absolute confidentiality. However, it is well-settled that generally all those involved in the proceedings are required to maintain confidentiality and arbitral awards are not published.18 In most cases, the proceedings are not disclosed to the public. This is what many parties in commerce appreciate as they can conduct commercial disputes in arbitration proceedings without the public or their competitors getting knowledge about any such disputes and its outcome. 21 However, the confidentiality of arbitration proceedings has recently drawn criticism. The question has been raised whether it is appropriate in today’s world to conduct “backroom” proceedings without any public supervision.19 This discussion is not so 20

16 However, this is not the case within the European Union. A state court judgment from another EU Member State has generally been easier to enforce than a foreign arbitral award since the EU Regulation on Jurisdiction and the Recognition and Enforcements of Judgments entered into force are not as extensive as the grounds for refusing recognition under the New York Convention (cf Art. 45 Brussels I Regulation (Recast)). 17 Cf Redfern/Hunter, supra (fn. 9), 75 et seq. 18 Cf Born, supra (fn. 4), 2787. 19 Cf Hay, in: Gonzalez-Bueno (ed.), 40 under 40 International Arbitration, 2018, (211).

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much triggered by commercial disputes which are generally unproblematic as far as confidentiality is concerned and which are the expression of private autonomy. However, a different view can be taken if states or state-owned companies are 22 involved in the proceedings. In this case, public interests are at issue and taxpayers’ money is often involved. Therefore, the question has been raised as to whether investor state disputes, in which the state may be ordered to pay compensation on the basis of political decisions, may be decided by a private arbitral tribunal away from public scrutiny.20 The International Centre for Settlement of Investment Disputes (ICSID) has reacted to this and set up wide-reaching rules on transparency.21 Under UNCITRAL’s rules on transparency, all investment protection proceedings ought to be public today. However, ICSID still assumes that the ICSID convention and arbitration rules do not include any general assumption of confidentiality or transparency applicable to all parties. Instead, the parties can agree on the degree of confidentiality or transparency to apply to their proceedings.22 In the Mauritius Convention on Transparency23, 22 states have undertaken to apply UNCITRAL’s rules on transparency.24 As an alternative, in more recent investment treaties international tribunals have been 23 especially set up to resolve disputes. The Comprehensive Economic and Trade Agreement between the EU and Canada (CETA) adopted in 2016 provides for a permanent investment and appellate tribunal.25 The idea is to transform the bilateral investment tribunal at a later date into an investment court where proceedings relating to other free trade agreements can be conducted, for example the EU-Vietnam free trade agreement.26 It will become apparent that this transparency discussion is relevant and must also be considered in the context of climate change disputes.27

5. Flexibility of proceedings Arbitration proceedings also offer a high degree of flexibility in structuring proceed- 24 ings and give the parties greater control and autonomy over the dispute than state court proceedings.28 For parties from different cultures, jurisdictions or states, it is often advantageous to be able to freely determine the place of the proceedings, the language and the rules of procedure. This can create neutrality which is often not possible in state court proceedings. Arbitration proceedings have also established numerous rules and best practises to balance the legal and cultural differences between different jurisdictions. For example, rules on how to take evidence in international arbitration proceedings have been established as a compromise between the different jurisdictions.29

20

Cf Born, supra (fn. 4), 2828. UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (New York, 2014). 22 Cf https://icsid.worldbank.org/en/Pages/process/Confidentiality-and-Transparency.aspx. 23 United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (New York, 2014). 24 Cf https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXII-3&chapter=22&clang=_en;to date (March 2020), only five states have ratified the convention, however. 25 Cf https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:22017A0114(01). 26 European Commission, A future multilateral investment court, memo available at: https://ec.europa. eu/commission/presscorner/detail/en/MEMO_16_4350. 27 Cf International Bar Association, Climate Change Justice and Human Rights Task Force Report, 2014, (14, 145). 28 Cf Born, supra (fn. 4), 84 et seq. 29 For example the IBA Rules on the Taking of Evidence in International Arbitration and more recently the Rules on the efficient conduct of proceedings in international arbitration (Prague Rules, 2018). 21

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6. Selection of arbitrators In arbitration proceedings the parties themselves may determine and choose the arbitrators.30 The parties may also decide whether an individual arbitrator or a threemember arbitral tribunal (or even five-member arbitral tribunal) is to decide the dispute. In the very common three-member tribunal, arbitrators are generally selected as follows: the claimant appoints an arbitrator, then the defendant, and finally these two arbitrators agree on a presiding judge. This guarantees that each party has at least one arbitrator at the tribunal who it trusts and who it has chosen.31 26 Freedom to choose an arbitrator also enables the parties to get the expertise at court which is required for the respective dispute. This is an important factor which may also be of importance with respect to climate change disputes. 25

7. Involvement of third parties It is much more difficult to involve third parties in arbitration proceedings than in state court proceedings.32 Involving other parties in ongoing proceedings before state courts is relatively unproblematic. In Germany, for example, this is possible by giving third-party notice pursuant to section 72 et seq. Code of Civil Procedure, by intervention by a third party pursuant to section 66 et seq. Code of Civil Procedure or by a third-party counterclaim. In arbitration proceedings, however, the inclusion of third parties is only possible with the consent of all the parties involved, in particular the third party to be involved. In recent years, all the major arbitration institutions have tried to open their arbitration rules in such ways as to facilitate the involvement of third-parties and so-called multi-party arbitration.33 However, the main problem in involving third parties is the fact that each party in arbitration proceedings must basically have the right to select its own arbitrator. Thus, if an arbitral tribunal has already been constituted, another party can only be involved if this party waives its right to appoint its own arbitrator. In practice, this does not happen very often. 28 Another difficulty encountered in multi-party arbitration is that there must be one arbitration agreement for all the parties involved, which gives the same arbitral tribunal competence in the matter. This is generally only the case if all the parties involved are subject to a uniform contractual provision and have concluded the same arbitration agreement with each another. If there are legal disputes from different contracts, this is usually not the case. Thus, despite the efforts of arbitral institutions to open up proceedings for third parties, it is still one of the main shortcomings of arbitration. 27

8. Involvement of states 29

Involvement of state parties in arbitrations is common and possible. Arbitration proceedings provide the opportunity to settle disputes where state parties are involved. Also, when a national government or agency is a party to arbitration against a private

30

Cf Redfern/Hunter, supra (fn. 9), 21 et seq. Nevertheless, arbitrators must be independent and impartial. If this is not the case, an arbitrator may be rejected and in the event of any doubt an arbitral award may be annulled, cf Article 34(2)(iv) of the UNCITRAL Model Law. 32 To Third Parties in the Arbitration Agreement, cf Redfern/Hunter, supra (fn. 9), 85–92. 33 E.g. Arts. 7–10 ICC Rules of Arbitration, Art. 22 of the LCIA Arbitration Rules, Arts. 27, 29 HKIAC Administered Arbitration Rules. 31

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entity, it cannot invoke sovereign privileges and immunities. This is a very important factor when considering whether arbitration is suitable for climate change disputes.34

9. Applicable law In arbitration proceedings the parties are free to choose the applicable law. Arbitra- 30 tion tribunals are bound by the law which the parties have agreed on. Increasingly, national and international legislation is adopted in relation to climate change issues. Although the consent about the applicable law will be influenced by the respective bargaining power of the parties, the parties may agree that international law is applicable and that the disputes shall be decided on this basis.

10. Claims based on tort A difficulty with arbitration is dealing with claims based on tort. As already 31 mentioned, an arbitration agreement must exist for arbitration proceedings to be carried out. If claims are exclusively based on tortious acts or on statutory claims, the parties are usually not connected by any contractual relationship which would enable arbitration proceedings to go ahead.

IV. Suitability of arbitration proceedings for climate change disputes To what extent arbitration proceedings will play a role in climate change disputes 32 must be examined with regard to the respective matter in disputes. According to the above, it is clear that arbitration proceedings can only be considered if an arbitration agreement has been concluded between the parties or the parties subsequently agree to arbitration proceedings.

1. Political and public law claims There is a large number of lawsuits pending in which individuals, environmental 33 associations or public pressure groups file actions against states or governments to force them to do more against climate change and/or to implement or enforce (political) emission reduction targets. The most prominent cases in this respect are the Urgenda case in the Netherlands35, 34 the Juliana case in the U.S.36 and the Peoples Climate Case before the European court37. Hundreds of similar cases are pending all over the world. In most of these lawsuits, the claimants refer to constitutional and human rights which would oblige the defendant states to do more to protect their citizens. In other cases, the claimants refer to the fact that states are politically or legally obliged to achieve certain emission reduction targets but have failed to do so. All of these lawsuits are currently being conducted before state courts or international 35 courts. It is not expected that much will change in the future. If claimants wish to refer to constitutional rights or wish to make states responsible for political or legislative 34

Cf Kalas/Herwig, Ecology Law Quarterly 27, 2000, 53. Supreme Court of the Netherlands, The State of the Netherlands v Stichting Urgenda ECLI:NL: HR:2019:2007, Hoge Raad, 19/00135. 36 U.S. Supreme Court, Juliana et al. v United States of America et al, No. 18-36082, D.C. No. 6:15-cv01517-AA. 37 European General Court, Armando Carvalho and others v European Parliament and European Commission, T-330/18. 35

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action, there is no arbitration agreement and no possibility of arbitration for such claims. So far, arbitration is thus not relevant to this very large category of climate lawsuits. This is, apart from the already mentioned reasons, also due to the fact that the claimants in this type of lawsuits seem to seek the public fora as means of climate activism.

2. Claims for damages and for specific performance against companies The same players bringing “political” or public law actions against states are also involved in bringing actions against companies. Companies, if they are seen to be contributing to climate change, are sued in many ways by individual persons, environmental associations and other interest groups.38 This group of claimants is (in particular in the U.S.) supplemented by cities, municipalities and federal states.39 37 These claims seek – court orders or injunctions to limit greenhouse gas emissions of defendants (emission reduction disputes), – compensation for damages suffered by the claimant due to the companies’ climatedamaging emissions, – compensation for future damages which will arise if emissions are not reduced, – damages caused by pollution as the result of failure to adapt to climate change, – reimbursement of expenses for climate change measures which have become necessary owing to the companies’ negative impact on climate. 38 These actions are also not suitable for dispute resolution before an arbitral tribunal. In such cases normally no arbitration agreement has been drawn up between the claimants and the defendant company. The criteria for the asserted claims are often based on tort or public international law and do not result from contractual relationships which could possibly contain arbitration agreements. Thus, there is generally no basis for arbitration proceedings. 39 Furthermore, claimants often have an interest in generating publicity. Often there is only little chance such actions brought against companies will be successful due to many legal challenges of these claims.40 Therefore, claimants are not predominantly interested in winning the lawsuit. They often seek to exert public pressure on companies. Public actions put the companies’ reputation at risk and defendant companies may have to act even if claimants do not have any legally enforceable claim to make. Therefore, publicity is often a key factor in these proceedings and claimants are not interested in confidentiality and will generally not agree to arbitration proceedings being conducted. 36

3. Disputes over natural resources 40

As shown above, climate change results in a reduction of and a threat to intact natural resources. If there are disputes over natural resources or pollution of the environment between states, it is conceivable that the claimant state may base its claim on international (environmental) treaties which contain arbitration clauses. As will be 38 OLG Hamm, Lliuya v RWE AG, 5 U 15/17; Hague Court of Appeals, Friends of the Earth Netherlands/Milieudefensie v Royal Dutch Shell, File no. 90046903; San Francisco County Superior Courts, Pacific Coast Federation of Fishermen’s Association, Inc. v Chevron Corp., Case No. CGC-18-571285. 39 E.g., U.S. Court of Appeals for the Second Circuit, City of New York v BP p.l.c., Case No. 18-2188. 40 E.g., causation, climate attribution, climate responsibility, separation of powers, locus standi of claimants, etc.; cf Gerrard, Sustainable Development Law & Policy, Vol. 12, Issue 2, 2012, 12–14, 56; Peppers, Is Climate change Too Political for Courts?, Georgetown Environmental Law Review, 31 March 2019; Boom/Richards/Leonard, Climate Justice: The international momentum towards climate litigation, Heinrich Böll Stiftung & Climate Justice Programme 2016.

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shown in more detail below, the UNFCCC, the Kyoto Protocol and the Paris Agreement provide the possibility of arbitration. However, corresponding arbitration agreements have not yet been brought into force. Nevertheless, inter-state disputes concerning environmental disputes and disputes over natural resources have been often conducted before arbitral tribunals.41 Two of the most prominent cases to do with environmental pollution are the 41 following, even if these were not triggered by climate change: a) Trail Smelter arbitration. The Trail Smelter arbitration proceedings dating back 42 to 1938 and 1941 was a dispute between the USA and Canada on the pollution of tracts of land as a result of sulphur emissions. This air pollution was caused by a smelting plant which was located in Canada, on the border to the USA. Originally, a dispute broke out between the smelting plant and farmers or landowners from the neighbouring USA who requested support from the American state which took on the dispute because of its transnational character.42 Canada and the USA employed an arbitral tribunal to resolve the dispute and decide 43 whether compensation would be paid for damage caused by pollution.43 The tribunal decided that Canada would have to pay compensation to the USA and that there was also an obligation to reduce pollution. This was the first decision which recognised the international liability for damage suffered by another country even if at that time there was no treaty providing for an obligation to prevent such damage.44 b) Indus Waters Kishenganga arbitration. On 17 May 2010, the Islamic Republic of 44 Pakistan initiated arbitration proceedings against the Republic of India. The reason for the proceedings was the commencement of construction in 2007 of the Kishenga Hydroelectric Project in India, which resulted in part of the Indus River in Pakistan drying out. The Indus Waters Treaty, relating to the Indus River which flows through India and Pakistan, governs the use of the river in these two countries.45 The Water treaty contained an arbitration clause referring the dispute to the Permanent Court of Arbitration.46 In 2013, the arbitral tribunal ruled that India would be permitted to continue with construction but would have to guarantee a minimum flow of water.47 As these two examples show, disputes over natural resources between states can well be resolved by arbitration.

4. Disputes arising from international climate protection treaties a) UNFCCC. In 1992, 154 UN member states gathered at the “Earth Summit” in Rio 45 de Janeiro to decide on an international climate agreement: the United Nations Framework Convention on Climate Change. This international climate treaty entered into force two years later in 1994. Today there are 197 parties to the Convention including all UN member states. The Members of the Convention agreed, that the ultimate objective of this Conven- 46 tion was to achieve a stabilization of greenhouse gas concentrations in the atmosphere at 41 Cf International Bar Association, Climate Change Justice and Human Rights Task Force Report, 2014, 14, 139. 42 Wirth, Environmental History, Volume 1, Issue 2 1996, 34–51. 43 Cf https://legal.un.org/riaa/cases/vol_III/1905-1982.pdf. 44 Ellis, in: Bratspies/Miller (eds.), Transboundary Harm in International Law: Lessons from the Trail Smelter Arbitration, Cambridge University Press, 2006, 56, 65. 45 Shreyan, Transboundary Water Disputes, ETH Zurich, Reasearch Collection 2013, https://doi.org/ 10.3929/ethz-a-009989936. 46 Cf https://treaties.un.org/doc/Publication/UNTs/Volume%20419/volume-419-I-6032-English.pdf. 47 Cf https://pcacases.com/web/sendAttach/1684.

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a level that would prevent dangerous anthropogenic interference with the climate system, Article 2 UNFCCC. 47 To be able to fulfil this objective, parties to the Framework Convention meet at annual conferences, known as the Conferences Of Parties (“COP”). At these conferences the parties discuss, specify and further adapt specified measures and conclude further agreements. Two of the most important ones are the Kyoto Protocol of 1997 and the Paris Agreement of 2015. 48 As dispute settlement mechanisms the Framework Convention suggests that the Parties concerned shall seek a settlement of the dispute through negotiation or any other peaceful means of their own choice, Article 14 (a). Under Article 14 (b) a Party may declare that it recognizes as compulsory ipso facto in relation to any Party accepting the same obligation the submission of the dispute to the ICJ and/or Arbitration in accordance with procedures to be adopted by the Conference of the Parties as soon as practicable, in an annex on arbitration. 49 To date, the parties have not agreed on an Annex for Arbitration setting out the procedural rules. Therefore, inter-state arbitration is not likely to emerge soon under the UNFCCC.48 b) Kyoto Protocol. In 1997, the Conference of the Parties took place in Kyoto, Japan, in which an additional protocol to the UNFCCC was agreed: the Kyoto Protocol. For the first time, this Protocol established binding greenhouse gas emission reduction targets for industrialised countries (Annex I countries). 51 These Annex I countries committed to undertake mitigation and adaptation measures to reduce greenhouse gas emissions by 5.2 % below the level of 1990, to be achieved during the first commitment period from 2008 to 2012. This aim was achieved, which led to the states agreeing upon a second commitment period under the Kyoto II Protocol, expiring in 2020. 52 As for the settlement of disputes, Article 19 of the Protocol also refers to Article 14 of the UNFCCC which in principle could enable arbitration but until today does not exist. 50

c) Paris Agreement. In 2015, the COP 21 was held in Paris, where the so called “Paris Agreement” was concluded. It sets the goal to limit global warming to well below 2 degrees Celsius above pre-industrial levels and to pursue efforts to limit the temperature increase to only 1.5 degrees above pre-industrial levels. There is no specific list of measures to be undertaken in order to fulfil that goal. Instead the Agreement follows a “bottom-up” approach where each country makes Nationally Determined Contributions (NDC) of how they commit to contribute to that common goal. 54 Whereas the mechanisms of the Kyoto Protocol mainly aimed at mitigation, the measures addressed in the Paris Agreement also include adaptation, loss and damages and climate finance. 55 Regarding the settlement of disputes, Article 24 of the Paris Agreement sets out that the provisions of Article 14 of the Convention on settlement of disputes shall apply mutatis mutandis to this Agreement. Since these dispute settlement mechanisms have not yet been agreed upon, inter-state arbitration arising from the Paris Agreement is also not to be expected in the short term. 53

5. Disputes resulting from the implementation of international climate treaties 56

Even if arbitration proceedings resulting directly from climate treaties are not to be expected in the near future due to an absence of an arbitration agreement, disputes 48

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involving states, intergovernmental organisations and private parties in the form of mixed or private arbitrations will nevertheless arise from the implementation of these treaties.49 a) Kyoto Protocol. In the Kyoto Protocol countries have agreed to meet individual reduction targets. All industrialised countries have been allocated an assigned amount of CO2 emissions. The unit per tonne of CO2 is referred to as “Assigned Amount Unit” or “AAU”. Countries may trade these AAUs, i.e. a country which has used up less CO2 than allocated to it in the distribution plan may sell the remaining units to another country which still requires units (international emission trading). In addition, the Clean Development Mechanism (CDM) in the Kyoto Protocol allows each state to also achieve compliance with its emission limitation by supporting measures in a developing country. Therefore, an industrialised country which finances emissions reduction projects in a developing country will be given credits, known as certified emission reduction credits (CERs). Another method is Joint Implementation (JI). Under Joint Implementation, joint efforts are undertaken by industrialised countries for which emission reduction units (ERUs) can be acquired. It is far beyond the scope of this chapter to describe all potential dispute constellations resulting from these mechanisms.50 However, in fulfilling the Protocol’s objectives, together with states the private sector and NGO’s are playing a crucial role. As a consequence, disputes may and will arise amongst private parties and between private parties and states. Although little is known about the number of private disputes that have occurred51, it is known that the Permanent Court of Arbitration has administered a number of cases arising from the emission trading scheme, the Joint Implementation mechanism and the Clean Development Mechanism.52 Disputes (and subsequently arbitrations) may arise also between private parties in connection with emission monitoring determinations, bookkeeping determinations and compliance/sanction determinations.53 A good example is the carbon emission trading system and more specific the Emission Reduction Purchase Agreement (ERPA), a contract for the sale and purchase of emissions allowances under the Kyoto protocol. Many of the standard contracts in use contain arbitration clauses. The CDM Emissions Reduction Purchase Agreement of the International Emission Trading Association (IETA) provides in clause 15.11 an arbitration clause referring to the PCA and its Optional Rules for Arbitration of Disputes to Natural Resources and/or the Environment.54 Also the IETA Emissions allowance Single Trade Agreement for the EU Scheme provides for a PCA arbitration clause.55 Furthermore, for the use and implementation of the Kyoto protocol mechanisms the UNFCCC commissioned the Gold Standard Foundation.56 The Gold Standard Foundation is in charge of providing the sustainability certificates for the qualifying projects under the Clean Development Mechanism, to determine whether and to what extent 49

Ibid. Cf Kalas/Herwig, Ecology Law Quarterly 27, 2000, 53; Brown, Journal of International Dispute Settlement, Vol. 1, No. 2, 2010, 447–473. 51 Brown, Journal of International Dispute Settlement, Vol. 1, No. 2, 2010, 449. 52 ICC Commission Report: Resolving Climate Change Related Disputes through Arbitration and ADR, 2019, 59: “One case concerned the proper allocation of ‘assigned amount units’ to set o emissions against carbon credits. Another arose from alleged failure to pay success fees as stipulated in an agreement to develop a CDM landfill project.” 53 Kalas/Herwig, Ecology Law Quarterly 27, 2000, 53. 54 IETA’s CDM Emission Reduction Purchase Agreement (www.ieta.org). 55 IETA’s Emissions allowance Single Trade Agreement for the EU Scheme (www.ieta.org). 56 Cf www.goldstandard.org. 50

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projects reduce CO2 emissions and therefore whether CERs or ERUs may be acquired. The Gold Standard Foundation also certifies environmental projects and channels funding into the most efficient environmental projects and enable trading with CO2 emission reductions. The Gold Standard Foundation has incorporated an adapted version of the PCA environmental rules in their process for appeals against certification decisions.57 Thus, disputes resulting from CDM projects and the certification process of projects can be resolved by arbitration. b) Paris Agreement. The same applies for the Paris Agreement.58 The Paris Agreement obliges the states to undertake emission reduction measures based on selfreduction targets, so-called Nationally Determined Contributions (NDCs). Comparable elements to the Kyoto Protocol’s flexible mechanisms can also be found within the Paris Agreement. The Agreement speaks of cooperative approaches which can help a member state in achieving its NDC. According to Article 6 No. 1 some Parties choose to pursue voluntary cooperation in the implementation of their nationally determined contributions to allow for higher ambition in their mitigation and adaptation actions and to promote sustainable development and environmental integrity. 65 These voluntary cooperation mechanisms are anchored in a system of international carbon trading, consisting not in the transfer of Assigned Amount Units, but of socalled mitigation outcomes which can then again be measured against the NDC.59 66 These mechanisms include a cooperative Emission Trading Approach (Article 6.2., 6.3.), the Sustainable Development Mechanism (SDM, Article 6.4.) and the Joint Mitigation Mechanism for forest management (5.2.). The implementation of these mechanisms requires contracts with private sector companies, paving the way for a potential scope of international commercial arbitration. 64

6. Disputes due to transformation towards Green economy The target envisaged in the Paris Agreement of limiting global warming to less than 1.5 degrees Celsius above pre-industrial warming requires a major transformation of the economy. The 2019 IPCC Report60 talks of necessary “transformative systemic change, integrated with sustainable development” and “implementation of far- reaching, multilevel and cross-sectoral climate mitigation”. The main sectors referred to are energy, land-use, agricultural practice, infrastructure, transport and construction.61 68 The sectors and industries referred to will therefore undergo an enormous change in coming years and decades. Investments in renewable energies, increased use of solar energy, wind energy and electricity storage technologies and a general reduction of emissions in energy-intensive industries will be the result. The conversion to e-mobility is coming to the transport sector. The expected change will occur in a large number of new contractual relationships, supply chains, start-ups, services, infrastructure and construction projects and their respective financing. At the same time, there will be considerable regulatory intervention. Arbitration proceedings are already being used to a significant extent in the sectors concerned (in particular energy, infrastructure and construction) to resolve disputes. It is therefore expected that disputes resulting from 67

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Miles, Research Handbook on Environment and Investment Law, Edward Elgar, 2019, 239. Levine, Transnational Dispute Management, Vol 14, Issue 1 2017. 59 Luhmann/Arens, Zeitschrift für Umweltpolitik und Umweltrecht, Sonderausgabe zur Pariser UNKlimakonferenz, Jg. 39 2016, 95–101. 60 Cf https://www.ipcc.ch/site/assets/uploads/sites/2/2019/06/SR15_Full_Report_High_Res.pdf. 61 Ibid. 58

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the change to these industries will be resolved by arbitration.62 The content of these disputes cannot be restricted and will range from disputes about defects in the construction of renewable energy power stations, investments in environmentally friendly technologies and in the provision of new types of services to disputes about contractual and statutory compliance caused by stricter regulation, or disputes caused by shifted stakeholder expectations leading to requests to amend contracts. Many companies have voluntarily undertaken to become carbon-neutral or at least 69 achieve considerable reduction targets. To achieve this goal, a large number of contracts are being concluded, service providers are being commissioned, certifications are underway and whole supply chains are being reorganized. Initially, most of these initiatives will be privately funded and are contract-based. Arbitration proceedings are thus possible and widespread. All of these disputes are the classic type of commercial arbitration.

7. Disputes arising from climate finance Mitigation and adaptation of climate change as well as the transition towards a 70 carbon-free, sustainable economy, requires enormous financial effort. The OECD estimates that 6.3 trillion US dollars of investment is necessary annually between 2016 and 2030 to transform the economy into a sustainable economic system.63 In the Paris Agreement developed countries have committed to jointly mobilise 100 billion US dollars per year in climate finance by 2020.64 Even more financial contributions will be provided by the private sector. Most of the financing and financial contributions will be on a contractual basis. If and when disputes arise, arbitration is a suitable forum to resolve these disputes and is widely used already today. In order to raise and distribute the monies, the UN-States have established a number of 71 special funds: The Green Climate Fund (GCF), the Special Climate Change Fund (SCCF), the Least Developed Countries Fund (LDCF) and the Adaptation Fund (AF). The two most important funds and their relation to arbitration shall be outlined in more detail: a) Adaptation Fund. Under the Kyoto Protocol the Adaptation Fund was established 72 in 2001, in order to finance adaptation projects and programmes in developing countries affected by climate change.65 This Fund can be considered as the first step towards a global Climate Finance Architecture. It has several sources of funding such as contributions by governments and private donors. Additionally, two percent of the share of proceeds of Certified Emission Reductions issued under the Kyoto Protocol’s flexible mechanisms are contributed to the fund.66 At the COP24, Parties agreed that the Fund shall also serve the Paris Agreement and that the financing of the fund had to be adapted.67 Since 2010 the fund has financed 100 concrete adaptation projects with US $ 720 mil- 73 lion.68 The Funds operating entity is the Adaptation Fund Board (AFB). This Board meets at least three times a year in Bonn, Germany and consists of 16 members and 16 alternates representing the Parties of the Kyoto Protocol. It supervises and manages 62 ICC Commission Report: Resolving Climate Change Related Disputes through Arbitration and ADR 2019, Annex: Climate Change Related Disputes in Practice, 53. 63 Cf https://www.oecd.org/environment/cc/g20-climate/executive-summary-investing-in-climate-investing-in-growth.pdf. 64 Cf https://unfccc.int/topics/climate-finance/the-big-picture/climate-finance-in-the-negotiations. 65 Cf https://www.adaptation-fund.org/. 66 Cf https://www.adaptation-fund.org/about/. 67 Cf https://www.adaptation-fund.org/adaptation-fund-shall-serve-paris-agreement-starting-january1st-2019/. 68 A Project Map View showing all the financed projects and information about each project can be found on the Adaptation Funds website: https://www.adaptation-fund.org/about/.

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the fund’s activities under the guidance of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol (CMP), to which it regularly has to report. One of the distinguishing features of the Adaptation Fund is the Direct Access Funding Model, a mechanism enabling implementing entities direct access to climate adaptation financing. Many contracts have been and will be concluded within the framework of the Adaptation Fund, making commercial arbitration an attractive and already used tool to resolve disputes arising in the fund’s context. This is due to the fact that arbitration is designated as the dispute resolution mechanism of choice in the context of the Adaptation Fund. Firstly, an arbitration clause can be found within the Model Agreement between Adaptation Fund Board and the implementing entity. When a specific adaptation project is submitted, the Adaptation Fund Board and the implementing entity receiving the financial support conclude an Agreement, in which the Fund Board agrees to provide the Grant for the purposes of the Project. Article 15.02 of this Model Agreement69 states that any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, which has not been settled amicably between the Board and the Implementing Entity shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules as presently in force. Secondly, an arbitration clause can be found in the Agreement between the Adaptation Fund and the World Bank. The World Bank acts as the trustee of the Adaptation Fund on an interim basis. The Decision -/CMP.10 by the Conference of the Parties established the Terms and Conditions such as the necessary legal arrangements for the World Bank to serve as a Trustee for the Adaptation Fund. The decision states that any dispute, controversy or claim arising out of or relating to the Terms and Conditions, which has not been settled by agreement between the CMP and the Trustee, shall be submitted to arbitration in accordance with the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL) in force on the effective date of the Terms and Conditions, and the following provisions: (1) the appointing authority shall be the Secretary-General of the Permanent Court of Arbitration.

b) Green Climate Fund. The Green Climate Fund was established in 2010. It serves as an operating entity of the financial mechanisms of both the UNFCCC and the Paris Agreement.70 It is intended to be the centrepiece of efforts to raise climate funds under the UNFCCC and the Paris Agreement. According to the Decision 1/CP.16 it aims to support projects, programmes, policies and other activities in developing country Parties using thematic funding windows. Its operating entity is the Green Climate Fund Board, consisting of 24 members and supported by the Boards Secretariat. The Green Climate Fund is headquartered in Incheon, South Korea. 79 The Fund receives its funding inter alia from contributing states. Apparently, the model contract for Contributing Agreements contain arbitration clauses with reference to the PCA rules with the place of arbitration in Seoul, South Korea.71 The Contribution Agreement concluded with France constitutes an ICC Arbitration. Disputes in connection with a state’s contribution will therefore be settled by arbitration. 80 For developing countries there are two main ways to access the Green Climate Fund. One is the so-called “International Access”. Under the International Access mode, developing countries can access the fund via accredited international Implementing 78

69 Cf https://www.adaptation-fund.org/wp-content/uploads/2011/10/Revised-AGREEMENT-as-of-Mar2018.pdf. 70 Carlarne, 25 Geo. Int’l Envtl. L. Rev. 1, 2013. 71 Cf Contributing Agreement between Norway and the Green Climate Fund.

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Entities. Such are, for example, UN organisations, multilateral development banks, but also international commercial banks. In the “Direct Access” mode, developing countries can access the Green Climate Fund via accredited national, regional, or sub-regional Implementing Entities. After a successful application for the financing of an (adaptation) project, an Accreditation Master Agreement (AMA) is concluded between an accredited Implementing Entity and the Green Climate Fund. When the entity is a public entity, the Accreditation Master Agreement very often calls for the application of international law and arbitration according to PCA rules. When the entity is a private sector company, the Accreditation Master Agreement and its dispute resolution mechanism resemble more what is known from normal private contracts. For example, the Accreditation Master Agreement concluded with Deutsche Bank stipulates that English law shall apply and provides for an ICC Arbitration with its seat in England. The AMA between the International Union for the Conservation of Nature and the Green Climate Fund refers disputes to the ICC and the AMA between the UN Environment Program and Green Climate Fund refers disputes to the PCA. Apart from the Accreditation Master Agreement there are several other agreements concluded within the Framework of the Green Climate Fund in which arbitration can come into play. Once an entity is accredited, it develops funding proposals which eventually lead to a Grant Agreement between the accredited entity and the Green Climate Fund. Some of these Grant Agreements include arbitration clauses such as the Framework Agreement between the Green Climate Fund and the Deutsche GIZ, in which disputes are referred to the ICC. According to Clause 29 of this Agreement any dispute, controversy or claim arising out of or relating to this Agreement, including any issue as to the breach, termination or invalidity thereof or any dispute regarding non-contractual obligations arising out of or relating to it, that is not been resolved through negotiation pursuant to Clause 29.01 above, shall be settled under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with said Rules in effect on the date of this Agreement. The place of arbitration shall be The Hague, the Netherlands. The language of arbitration shall be English. The Grant Agreement between the Corporacioón Andina de Fomento and the Green Climate Fund provides for PCA arbitration. Another field of potential disputes could be co-financing. The Green Climate Fund has established a private sector facility which aims at attracting private funding to cofinance projects. To that end, the private sector facility tries to offer attractive packages to private investors by, for example, scaling projects or combining various projects to achieve an attractive investment volume and minimise risk. The World Bank is serving as an interim trustee of the Green Climate Fund. According to Article 10.2. of the Agreement on the Terms and Conditions for the Administration of the Green Climate Fund Trust Fund between the Green Climate Fund and the World Bank any disputes arising out of this Agreement shall be submitted to PCA arbitration. Arbitration can also come into play where private sector companies are involved. Potential disputes can concern the raising of funds, the funding of eligible projects, the implementation, execution, monitoring and certification of funded projects, but also activities surrounding the funding itself, for example, the accreditation process.

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8. Corporate disputes Finally, a large number of climate change disputes between shareholders or between 88 shareholders and management can already be seen today. Lennarz

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By exercising shareholder rights, shareholders try to exert pressure on the management and influence the strategy and economic decisions of the company. A variety of attempts are being made to oblige companies to act in a climate-friendly manner or make management liable for corporate decisions or investments which have detrimental effect on the climate. 90 These actions are based on – breach of the duty to safeguard assets by an entrepreneurial decision, – breach of information duties regarding climate change risks, – breach of human rights/constitutional rights by companies, – the company’s duty to comply with environmental laws and/or international treaties. 91 As far as can be seen, these actions are currently being conducted before state courts.72 Similar to the above discussed political disputes and disputes of public pressure groups, the claimants often seek publicity and thus have no interest in arbitration. However, it is also conceivable that these corporate law disputes be conducted before arbitral tribunals. If a company’s articles of association contain an arbitration clause, internal disputes may (or must) be conducted in arbitration proceedings. 92 As all of the above examples show, arbitration does and will play a very important role when it comes to climate change disputes. 89

V. Arbitral institutions and climate change 93

Since a rise of climate change related disputes are expected, an increasing number of arbitral institutions have established climate change on their agenda73 and have positioned themselves as the best suitable forum for climate change disputes. In 2014 the IBA Task Force on Climate Change Justice encouraged arbitral institutions to take appropriate steps to develop rules and/or expertise specific to the resolution of environmental disputes, including procedures to assist consideration of community perspectives.74 The two most important institutions in this respect and their efforts can be summarized as follows:

1. Permanent Court of Arbitration, The Hague 94

The Permanent Court of Arbitration is an intergovernmental organisation situated in The Hague in the Netherlands. It was established as a result of the Hague Convention of 1899. According to Article 20 of the 1899 Convention, its main object is facilitating an immediate recourse to arbitration for international differences which it has not been possible to settle by diplomacy. What started as the first mechanism of settling international disputes between states, has developed into a global framework offering administrative support in inter-state, investor-state and contract-based arbitrations. Meanwhile the PCA has 122 contracting parties.75 72 E.g., successful claim of NGO ClientEarth as shareholder of a Polish energy provider claiming for the invalidity of an investment decision to build a new coal power plant: District Court in Poznan (Poland), ClientEarth v ENEA, http://climatecasechart.com/non-us-case/clientearth-v-enea/; Securities Fraud lawsuit: US District Court for the Northern District of Texas, Ramirez v Exxon Mobil Corp., Case 3:16-cv03111-K; Failure to disclose climate change information: US State District Court for the Southern District of Texas, Fentress v Exxon Mobil Corp., Case No: 4:16-cv-03484. 73 ICC Commission Report: Resolving Climate Change Related Disputes through Arbitration and ADR, 2019, 2.4. 74 International Bar Association, Climate Change Justice and Human Rights Task Force Report, 2014, 28. 75 Cf https://pca-cpa.org/en/about/.

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In 2001, the PCA adopted specialised procedural environmental rules for arbitration and conciliation, the Optional Rules for Arbitration of Disputes relating to Natural Resources and/or the Environment. In doing so, the PCA has become a special forum for environmental disputes and positioned itself as an Alternative to an International Environmental Court.76 The Optional Rules for Arbitration of Disputes relating to Natural Resources and/or the Environment rules are based on the 1976 UNICTRAL Arbitration Rules and aim to introduce certain procedural features reflecting the particular characteristics of disputes having a natural resources, conservation, or environmental protection component.77 – First, the rules have been made available to state actors, as well as to non-state actors such as international organisations, NGOs and private parties such as multinational corporations or even individuals, making any combination of parties possible.78 – Second, in order to reflect the public international law element which pertains to disputes which may involve States and utilization of natural resources and environmental protection issues, Article 33 of the Rules allows for the application international law. Article 33 determines the applicable law as either designated by the parties or, in the absence of a designated law, gives the arbitral tribunal the discretion to apply the national and/or international law and rules of law it determines to be appropriate, which means that a decision could be made based on international climate treaties. – Further, the PCA provides the establishment of a specialised list of arbitrators nominated by PCA Member States mentioned in Article 8 (3). The PCA publishes a list of persons considered to have expertise in the subject-matters of environmental and climate disputes.79 – Finally, the PCA also provides a list of scientific and technical experts, which can be called upon as expert witnesses by the arbitral tribunal to report to it on specific issues to be determined by the tribunal.80 The rules have been widely considered as a successful attempt to overcome the shortcomings of classical international dispute resolution in dealing with environmental issues, for instance by granting access to non-state actors to an environmental dispute forum and by providing flexibility to the parties.81 As a consequence, an increasing number of international treaties expressly refer to the PCA’s specialized environmental rules.82

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2. International Court of Arbitration of the ICC, Paris The ICC, the world’s leading institution for international commercial disputes, has 99 closely followed the development of international climate treaties and the rise of climate change disputes.

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Vespa, The Law and Practice of International Courts and Tribunals, 2003, 295. Meshel, Oxford Public International Law 2016, https://opil.ouplaw.com/view/10.1093/law-mpeipro/ e2810.013.2810/law-mpeipro-e2810. 78 Garimella, ILI Law Review, Summer 2016, 199–222. 79 Specialized panel of arbitrators: https://pca-cpa.org/wp-content/uploads/sites/6/2016/07/CurrentList-Annex-2-SP-ARB-update-20190930-184035-v10.pdf. 80 Specialized panel of scientific experts: https://pca-cpa.org/wp-content/uploads/sites/6/2016/07/Current-List-Annex-3-SP-SciEXP-update-20190930-184038-v6.pdf. 81 Meshel, Oxford Public International Law 2016; International Bar Association, Climate Change Justice and Human Rights Task Force Report 2014, 140. 82 E.g., “the Compact”, a Private Sector Initiative that emerged out of the UN Convention on Biological Diversity. Further references, supra IV.5.a). 77

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101

102

103

104 105

The ICC, together with the PCA, the IBA and the SCC has organised dispute resolution related side events to the Conference of the Parties to provide a forum of open discussion about the role of arbitration and ADR in climate related disputes. The first side event took place during the COP 21 on “Climate Change Related Disputes: A Role for International Arbitration and ADR”. A second side event was hosted in 2016 during the COP 22 on “Bridging the Climate Change Policy Gap: The Role of International Law and Arbitration”. In 2017, a third side event took place during the COP 23 on “Supporting the UNFCCC and the Paris Agreement through International Dispute Settlement”. Further, in 2015 the ICC Rules for the Administration of Expert Proceedings came into force, in which the ICC Centre of ADR offers services for the proposal or the appointment of experts and the administration of expert proceedings. In order to find an expert on climate change related disputes with scientific or technical expertise, the ICC Centre for ADR offers to conduct a research based on its worldwide network of professionals.83 In April 2017, the ICC Commission on Arbitration and ADR constituted a task force on Arbitration of Climate Change Related Disputes to explore the future role of arbitration in climate change related disputes. In 2019, this task force published an ICC Commission report on “Resolving climate change related disputes through arbitration and ADR”.84 In this report, the task force predicts a rise of climate change related transition, adaptation and mitigation disputes, in which arbitration could come into use. The ICC task force describes the advantages of arbitration and ADR services for the resolution of climate related disputes and comes to the conclusion that the main benefit within the ICC arbitration system is that states or state entities can be taken into account as participants in an arbitral dispute. Furthermore, arbitral awards are subject of cross-border recognition and enforcement so that the international dimension of climate change is met. Additionally, arbitral tribunals can provide the expertise needed in these scientifically complex cases and are flexible as to the place of the arbitration and the costs, since they can be individually agreed upon between the parties, making arbitration accessible to stakeholders. The task force also introduces six procedural features, by which existing procedures could be made more effective in relation to climate change related disputes: a) Securing relevant expertise. Expertise should not only be secured when choosing arbitrators, but also when appointing experts. To ensure that the arbitral tribunal “shall have expertise in general principles of climate change policy and climate change law”85 or specific technical expertise, clauses could be added to the ICC Standard Arbitration agreement. Furthermore, party or tribunal appointed experts with special climate expertise could be appointed following a clause inserted into the arbitration agreement. Such an appointment should be facilitated by utilisation of the facilities of the ICC International Centre for ADR to identify individuals with appropriate climate change related expertise. Last, the role of that Centre is variable, as it could put forward the name of an expert, directly appoint an expert or administer and supervise the entire expert proceedings.

83 ICC Commission Report: Resolving Climate Change Related Disputes through Arbitration and ADR, 2019, 32. 84 Ibid. 85 Cf ICC Arbitration and ADR Commission Report 2019, § 5.11, https://iccwbo.org/publication/iccarbitration-and-adr-commission-report-on-resolving-climate-change-related-disputes-through-arbitration-and-adr/.

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b) Faster and more effective procedures. As “the environmental impact and effects 106 on populations are often irreversible if not dealt with at an early enough stage”,86 parties could adopt certain case management techniques, such as bifurcating the proceedings, deciding solely on written documents rather than oral evidence or facilitating dispute resolution by negotiation or ADR. Moreover, parties could apply the ICC Expedited Procedure, given that the amount in dispute does not exceed US $ 2 million, or the parties agreed otherwise. Also, Emergency proceedings, pursuant to the ICC Emergency arbitration Rules or interim measure under ICC Arbitration Rules Article 28 (2) could ensure a timely resolution of the dispute. Last, the ICC Arbitration rules provide under Appendix V on case management techniques examples that control proportionate use of time and cost expenses. c) Integration of climate change policy, commitments or laws. ICC arbitration 107 tribunals are bound by the law which the parties have agreed on. Increasingly, national and international legislation is adopted in relation to climate change issues. The governing law clause of the arbitration agreement could be amended to highlight the importance of international agreements such as the UNFCCC and the Paris Agreement. d) Transparency. In view of the ICC Task force, transparency in climate change 108 related dispute is of foremost importance. As “the lack of transparency in traditional commercial arbitration has been viewed as a barrier to its legitimacy”,87 climate change related disputes should be scrutinised by the public. Therefore, arbitration agreements could be adapted by “opening the proceedings to the public, including in the publication of submissions, procedural decisions and hearings; and publication (or even redacted publication) of awards”.88 Furthermore, the ICC already strives for greater transparency by publishing on the ICC website inter alia: (i) the names of the arbitrators; (ii) the arbitrators’ nationalities; (iii) the arbitrators’ role within a tribunal; (iv) the method of appointment; and (v) whether the arbitration is pending or closed.89 e) Third party involvement. Climate change related disputes often involve public 109 interests but also may benefit from involvement of affected individuals such as citizens and peoples. While the ICC Arbitration Rules allow parties to seek to join additional parties (Article 7), as well to bring claims against multiple other parties (Article 8) in respect of multiple contracts (Article 9), the arbitral tribunal cannot permit third parties to join of their own accord. Hence, “any involvement by third parties in the arbitral process requires the clear and express consent of the parties”.90 While it is widely accepted that multiparty arbitration has the advantage of enabling the dispute to be resolved in one single procedure taking account of all issues and the interests of all parties affected and can save considerable costs and time91, it requires the consent of all involved parties. The arbitration clause could therefore be adapted to ensure the possibility of multi-faceted climate change related disputes even where different arbitration clauses are not compatible, but parties nevertheless wish to consolidate proceedings.

Ibid. § 5.34. Ibid. § 5.66. 88 Ibid. § 5.70. 89 Ibid. § 5.73. 90 Ibid. § 5.80. 91 Lew/Mistelis/Kröll, Comparative International Commercial Arbitration 2003, ch. 16, §§ 16–2 and 16–3. 86 87

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VI. Summary 110

In summary, it can be concluded that arbitration is a dispute resolution mechanism suitable not for all, but for many climate change disputes. It will play a very important role in the future when it comes to disputes triggered by the ever worsening climate change. Arbitration will have its role both in contractual disputes (commercial arbitration) as well as in disputes where states are involved and where public international law defines the legal relationships of the parties. The major international arbitration institutions have positioned themselves as important stakeholders both for promoting climate change arbitration as well as for administering these disputes in the future.

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F. Conflicts of jurisdiction and the applicable law in domestic courts’ proceedings Bibliography: Basedow/Rühl/Ferrari/de Miguel Asensio, Encyclopedia of Private International Law Vol. II, Edward Elgar Publishing 2017; Bogdan/Pertegás Sender, Concise Introduction to EU Private International Law, 4th ed., Europa Law Publishing 2019; Calliess, Rome Regulations, 2nd ed., Wolters Kluwer 2015; Cheshire/ North/Fawcett, Private International Law, 15th ed., Oxford University Press 2017; Dasser/Oberhammer, Lugano Übereinkommen, 2nd ed., Stämpfli Verlag 2011; Dicey/Morris/Collins, The Conflict of Laws Vol. I&II, 15th ed., Sweet & Maxwell 2012; Dickinson/Lein, The Brussels I Regulation Recast, Oxford University Press 2015; Dutta, Internationale Zuständigkeit für privatrechtliche Klagen gegen transnational tätige Unternehmen wegen Verletzung von Menschenrechten und von Normen zum Schutz der natürlichen Lebensgrundlagen, in: Reinisch et al. (Hrsg.) Unternehmensverantwortung und internationales Recht, C.F. Müller, 2020, 39; Hay/ Borchers/Symeonides/Whytock, Conflict of Laws, Hornbook Series, 6th ed., West Publishing 2018; Hüßtege/ Mansel, Nomos Kommentar BGB, Rom-Verordnungen, Band 6, 3th ed. 2019; Lehmann/Eichel, Globaler Klimawandel und Internationales Privatrecht, RabelsZ 83 (2019), 77; Magnus/Mankowski, European Commentaries on Private International Law, Vol. 1: Brussels Ibis Regulation – Commentary, Verlag Dr. Otto Schmidt 2016; Mankowski, Ausgewählte Einzelfragen zur Rom II-VO: Internationales Umwelthaftungsrecht, internationales Kartellrecht, renvoi, Parteiautonomie, IPRax 2010, 389; Plender/Wilderspin, The European Private International Law of Obligations, 4th ed., Sweet & Maxwell 2014; Pöttker, Klimahaftungsrecht, Mohr Siebeck 2014; Van Loon, Principles and building blocks for a global legal framework for transnational civil litigation in environmental matters, Uniform Law Review 23 (2018), 298; Zekoll/Schulz, Neue Grenzen für die internationale Zuständigkeit amerikanischer Gerichte?, RIW 2014, 321;

Contents I. Introduction ..................................................................................................... 1. Road map ..................................................................................................... 2. Cross-border elements giving rise to questions of private international law ......................................................................................... 3. No universal rules with respect to jurisdiction and Choice of Law .. II. State immunity and “political question doctrine”................................... 1. State immunity ............................................................................................ a) General principles ................................................................................. b) Principles of state immunity applied to climate change litigation .................................................................................................. aa) Claims against states ..................................................................... bb) Claims against state-owned corporations................................. 2. “Political question doctrine” as a limitation to cross-border proceedings .................................................................................................. III. Jurisdiction ....................................................................................................... 1. Introduction................................................................................................. a) Meaning and relevance of international jurisdiction.................... b) Connection with recognition and enforcement ............................. c) Overview of legal sources .................................................................... 2. Brussels Ibis Regulation and Lugano Convention .............................. a) Applicability ........................................................................................... aa) Subject matter must be “civil and/or commercial” ................ bb) Personal applicability .................................................................... cc) Application in time........................................................................ b) General jurisdiction at the defendant’s domicile: Art. 4 (1) Brussels Ibis Reg.................................................................................... c) Special jurisdiction for actions in tort: Article 7 No. 2 Brussels Ibis Regulation ....................................................................................... aa) CJEU: Place where the harmful event occurred or location of damage......................................................................................... bb) CJEU: Multi-state torts .................................................................

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Part 2. Procedural issues and Conflict of Laws cc) Application to climate change litigation................................... d) Special jurisdiction for joint claims against domestic anchor defendant and foreign subsidiary ...................................................... 3. EU Member States’ autonomous rules on jurisdiction...................... a) Place of damage for liability in tort .................................................. b) Joint action against EU parent company and third-state subsidiary ................................................................................................ c) Exorbitant heads of jurisdiction ........................................................ 4. United States: Personal jurisdiction of state and federal courts ...... a) General jurisdiction .............................................................................. b) Specific jurisdiction............................................................................... c) Exorbitant heads of jurisdiction: Transient rule ............................ d) Subject-matter jurisdiction: Alien Tort Statute .............................. e) Forum non conveniens ........................................................................ f) Consequences for climate change litigation concerning damages or protective measures against corporations ................. IV. Choice of Law .................................................................................................. 1. Introduction................................................................................................. 2. EU: Liability in tort (delict) according to the Rome II Regulation. a) Applicability ........................................................................................... b) Freedom of choice of law, Article 14 Rome II ............................... c) Special rule on environmental harm, Article 7 Rome II.............. aa) Applicability .................................................................................... bb) Place of damage rule ..................................................................... cc) Option............................................................................................... dd) Scope of the applicable law.......................................................... d) Article 17 Rome II Regulation ........................................................... aa) Local data rule ................................................................................ bb) Article 17 and the possible impact of permits or authorisations in accordance with public law ......................... e) No analogous application of Article 5 (1) (ii) in cases of environmental liability ......................................................................... f) Internationally mandatory rules and ordre public ........................ 3. Autonomous PIL: Property law .............................................................. 4. US conflict of laws......................................................................................

22 26 28 29 30 31 32 33 34 36 37 38 39 40 40 41 41 44 45 46 47 48 49 50 50 53 56 58 59 60

I. Introduction 1. Road map 1

In cross-border civil lawsuits, two crucial questions arise which must be answered before a court can start to adjudicate on the substantive merits of the case.1 The first is the matter of international jurisdiction (in the US: personal jurisdiction), i.e. the question whether the courts of the forum state are competent to hear and decide the case (below, III: Jurisdiction). When this question is answered in the affirmative, the court must, secondly, resolve a preliminary question on the merits by determining the applicable law, since in the absence of internationally uniform law on civil liability for environmental harm and subsequent damage to life, health and property, courts will usually have to apply national private law on the substantive issues (below, IV: Choice of law). Where states,2 state agencies or state-owned corporations are sued in a foreign court, immunity 1 The former Secretary General of the Hague Conference on Private International Law, Hans van Loon, speaks of a “key role for private international law in such law suits”, cf van Loon, ULR (2018), 298 (305). Cf also, albeit very briefly, Chatzinerantzis/Appel, NJW 2019, 881. 2 Cf for example the famous Case The State of the Netherlands v. Urgenda Foundation, Gerechtshof Den Haag, 9.10.2018, ECLI:NL:GHDHA:2018:2610.

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based on public international law can also become an issue. This is briefly discussed below, sub. II. As will be shown below, sub. I. 3, the relevant rules on international jurisdiction and the applicable law are originally and basically national law, despite the subject-matter being international in its very nature. Only the EU has so far been successful in unifying large parts of the relevant legislation. Parts III.2. and IV.2. are dedicated to EU law, and Parts III.4. and IV.4. give a short introduction to US law. However, before entering into any discussion on Private International Law (in the broad sense, including both jurisdiction and choice of law), it seems helpful to briefly determine which elements render a lawsuit an international one.

2. Cross-border elements giving rise to questions of private international law The typical defendants of climate change litigation in civil courts (as opposed to 2 administrative or constitutional courts) are corporations that are held to contribute to carbon dioxide and other greenhouse gas emissions; for example, companies engaged in the extraction, production, storage and dissemination of fossil energy (coal, oil and gas).3 But the range of possible defendants is nearly limitless, since it can potentially include every individual and corporation that is engaged in the production or use of equipment that consumes unnecessarily high amounts of fossil energy or produces greenhouse gas emissions on a large scale; for example, car manufacturers, airlines, cruise ship companies, the food industry and industrial farming.4 Thus, human action that triggers emissions (and hence climate change), the emissions themselves, and the impact that climate change has on weather extremes (e.g. storms, droughts and heatwaves) and the consequences of these extremes on life, health, property and human activities generally are all global, cross-border phenomena. Yet, the inherently international character of climate change and its consequences does not mean that private international law will automatically be an issue in every civil climate change litigation. Instead, there has to be a concrete crossborder element in the facts of the individual case. This requisite international element is most frequently provided by the environmen- 3 tal harm and the fact that the action triggering it being located in different jurisdictions – something that will, in addition, often lead to the plaintiff(s) and the defendant(s) being located in different jurisdictions. A good example is the lawsuit of a Peruvian landowner and farmer against the German-based company RWE because of the latter’s contribution to global warming, which has contributed to the melting of a glacier. This has in turn led to a rise in the water level of a lake that is situated above the Peruvian farmer’s land, threatening to flood it.5 In other cases, questions of international jurisdiction and conflict of laws may be triggered by the corporate or commercial structure of the defendant(s); for example, where victims of the activities of a parent company’s subsidiary or contractor situated in a foreign host state try to sue the parent company in its own home state.6 Although the commercial activity and the harm done in this scenario may occur in the same jurisdiction, the plaintiff(s) and the defendant parent company are still located in different jurisdictions. In contrast, in cases where local inhabitants sue domestic corporations because of their contribution to greenhouse gas emissions or their failure to engage in protective measures, international jurisdiction and the question of the applicable law will most likely not be taken up as separate issues 3 Cf for example Native Village of Kivalina and City of Kivalina v. ExxonMobil corporation and others, Ninth Circuit Court of Appeals, 21.9.2012, 696 F.3 d 849. 4 Cf Ahrens, VersR 2019, 645 (646). 5 OLG Hamm, Court Order of 30 November 2017, ZUR 2018, 118. 6 Van Loon, ULR (2018), 298 (305).

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by the courts, even if neither the emissions nor the damage resulting from them are limited to the state in which the parties to the lawsuit are located.

3. No universal rules with respect to jurisdiction and Choice of Law Despite the international character of private international law (in the broad sense, including conflicts of jurisdiction), its rules are, as a matter of principle, national in origin. However, some have been unified at a supranational or international level, either in the framework of regional economic integration (in particular within the EU; see below, III.2 and IV.2) or through international conventions, such as under the auspices of the Hague Conference (below, III.1.c). There are, of course, numerous worldwide initiatives and international soft law instruments for better protecting human and environmental rights and fostering corporate social responsibility, such as the UN Guiding Principles on Business and Human Rights, 2011 (“Ruggie Principles”);7 the 2030 Agenda for Sustainable Development and its 17 Sustainable Development Goals;8 the UN Global Compact Initiative;9 and the 2011 OECD Guidelines for Multinational Enterprises,10 to name but the most important ones. Yet none of them has any direct legal impact, neither on the level of private international law nor on the substantive law level, although they call on states to implement effective mechanisms to protect human rights and to provide access to effective remedies if violations nevertheless occur.11 It is generally held that these soft law instruments do not bind states legally, so that they are even less capable of being sources of jurisdictional rules that could be invoked by parties in civil litigation.12 5 In contrast, the “Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of Transnational Corporations and Other Business Enterprises” that is currently being developed by the United Nations Human Rights Council13 would be binding upon contracting states, as the title suggests. According to the current draft Article 7 on “Adjudicative Jurisdiction”, it would grant victims of human rights violations (including environmental rights; see the definition of human rights in draft Article 1), regardless of their nationality, access to the courts of the state a) where acts or omissions that resulted in the violations occurred, b) where the victims are domiciled, or c) where the persons alleged to have committed such acts or omissions are domiciled (subsection 2 defines domicile in more detail).14 If and when this draft will have matured into an International Convention and will have entered into force, it will in fact regulate the international jurisdiction of the courts of the 4

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www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf. https://www.un.org/sustainabledevelopment/development-agenda/. 9 https://www.unglobalcompact.org/about. 10 http://www.oecd.org/corporate/mne/48004323.pdf. Recommendations no. IV.6. lit b and lit c explicitly address greenhouse gas emissions. 11 Cf for example “Ruggie principle” No. 1: “States must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises. This requires taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication”; No. 2: “States should set out clearly the expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations”; and No. 25: “As part of their duty to protect against business-related human rights abuse, States must take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within their territory and/or jurisdiction those affected have access to effective remedy.” 12 Van Loon, ULR (2018), 298 (303); Dutta, p. 47; Habersack/Ehrl, AcP 219 (2019), 155 (179). 13 Cf https://www.ohchr.org/EN/HRBodies/HRC/WGTransCorp/Pages/IGWGOnTNC.aspx. 14 Cf revised draft of 16th July 2019, https://www.ohchr.org/Documents/HRBodies/HRCouncil/ WGTransCorp/OEIGWG_RevisedDraft_LBI.pdf. 8

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contracting states and – albeit to a lesser extent – harmonise the rules on the applicable law (see draft Art. 9). But as the law currently stands, there is no general international legal instrument or binding customary rule of public international law that would regulate international jurisdiction for human rights violations or environmental damage.15

II. State immunity and “political question doctrine” 1. State immunity a) General principles. Immunity is at stake when a foreign state or government is 6 sued in a domestic court. If it is successfully invoked, any lawsuit in front of a civil (or indeed criminal) court is barred. Public international law knows the maxim that “par in parem non habet imperium”: a sovereign state is not subject to another state’s jurisdiction. Since World War II, international customary law adheres to the notion of “restricted state immunity” and hence distinguishes between acta iure imperii, acts where states execute their public powers, and acta iure gestionis, acts where states engage in commercial transactions with natural or juridical persons.16 Immunity from foreign jurisdiction is only granted in the first case (acta iure imperii).17 In order to judge the nature of the act, the act itself, rather than its ultimate goal, must be considered.18 Otherwise, the distinction would be largely meaningless, since all acts undertaken by public authorities in one way or other should promote public welfare. Even if acta iure imperii are at stake, immunity may be limited if the state itself has initiated the relevant court proceedings and subsequently finds itself as the defendant of a counter-claim, or where a state has expressly consented to the exercise of foreign jurisdiction.19 There is a debate whether immunity should be further excluded where a state has grossly violated international humanitarian law, but current court practice does not embrace this idea.20 The relevant sources for the aforementioned principles differ: some states have 7 enacted them nationally but with effect vis-à-vis the world at large (see for example 15

Dutta, p. 47. Cf Queirolo, in: Basedow/Rühl/Ferrari/de Miguel Asensio (eds.), Encyclopedia of Private International Law Vol. II, 2017, 896 (897). 17 Cf for example the decision of the German Constitutional Court, BVerfGE 16, 27. A more recent example is the failure of claims from private investors against the Greek state before German courts for cutting repayments on bonds that were issued by the Greek state by 50 % because of the state’s financial crisis. The law providing for the cuts was held to have been passed as acta iure imperii, cf BGH 8.3.2016, NJW 2016, 1659. 18 Cf for example BGH IPRspr. 1974 No. 1 b: A broker in the arms trade sued the Portuguese state for payment of his promised commission. The deal between the state and the broker was held to be “acta iure gestionis” although the ultimate use of the weapons purchased through the agent would clearly be “acta iure imperii”. 19 Cf Arts 7, 8 and 9 of the United Nations Convention on Jurisdictional Immunities of States and Their Property, 2004 (not in force). 20 Cf International Court of Justice, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J. Reports 2012, p. 99 (142) mn. 97: “Accordingly, the Court concludes that even on the assumption that the proceedings in the Italian courts involved violations of jus cogens rules, the applicability of the customary international law on State immunity was not affected.” Cf also the summary: “It [The Court] stated in this connection that, under customary international law as it presently stood, a State was not deprived of immunity by reason of the fact that it was accused of serious violations of international human rights law or the international law of armed conflict.” Cf also BVerfG, NJW 2006, 2542; ECJ Case C-292/05 Lechouritou and others v Bundesrepublik Deutschland [2007] ECR I-01519. Cf also R. Wagner, RIW 2013, 851. 16

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the UK State Immunity Act 197821 and the United States Foreign Sovereign Immunities Act),22 while others, including Germany, Belgium, Austria, the Netherlands and Switzerland, are parties to the European Convention on State Immunity (1972). However, this convention only applies where both the forum state and the defendant state are parties to it. The UN Convention on State Immunity (2004) has not yet entered into force. Where no statutory source or convention exists, the principles are applied by way of international customary law. 8

b) Principles of state immunity applied to climate change litigation. aa) Claims against states. If states are sued in a foreign court for not taking adequate steps to combat climate change or to adapt to its consequences, they will usually be able to invoke immunity against the admissibility of such claims because these omissions are decisions of the state authorities within their sovereign executive or legislative powers – they are not commercial activities. This means that cases like Urgenda v Netherlands23 can only be brought in domestic courts. On the other hand, if states take part in commercial activities like any other private corporation and thereby cause greenhouse gas emissions, these activities can be the subject-matter of a civil lawsuit, and this may take place in a foreign forum. As the relevant US legislation states in clear terms: “A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case […] (2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.”24

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bb) Claims against state-owned corporations. Furthermore, emissions will often be generated by state-owned or state-controlled companies.25 In many countries, the state will at least hold shares in the country’s large fossil energy-producing or -consuming corporations. Generally speaking, such companies, being separate legal entities, do not enjoy immunity.26 However, some of the legal sources cited above, sub a), may suggest that entities other than the state itself might nevertheless enjoy immunity: Article 2 (1) (b) (iii) of the United Nations Convention on Jurisdictional Immunities of States and Their Property (2004), which, although not binding, may be used as a source of international customary law, includes in its definition of states “agencies or instrumentalities or other entities, to the extent that they are entitled to perform and are actually performing acts in the exercise of sovereign authority of the State”.27 Similarly, Art. 14 (2) of the UK State Immunity Act 1978 grants immunity to “separate entities” (referring to an entity “which is distinct from the executive organs of the government of the State and capable of suing or being sued”; see Art. 14 section 1) if “(a) the proceedings relate to anything done by it in the exercise of sovereign authority; and (b) the circumstances are such that a State […] 21

Cf in greater detail Cheshire/North/Fawcett, Private International Law, 2017, pp. 498 et seq. Cf 28 U.S. Code § 1605: General exceptions to the jurisdictional immunity of a foreign state. Hoge Raad, The State of the Netherlands v. Urgenda Foundation, 20.12.2019, ECLI:NL:HR:2019:2006; as to the decision of the lower instance (Gerechtshof Den Haag) cf Wegener, ZUR 2019, 3. For actions against states cf generally Fonbaustier, La Semaine juridique éd. Générale, 2019, étude 615 (p. 1100 et seq.). 24 Cf 28 U.S. Code § 1605: General exceptions to the jurisdictional immunity of a foreign state. 25 Cf the list of the world’s 20 most important polluters, as investigated by The Guardian in October 2019 (https://www.theguardian.com/environment/2019/oct/09/revealed-20-firms-third-carbon-emissions?) of which twelve are state-owned. 26 Dutta, p. 62. 27 Cf also Queirolo, in: Encyclopedia of Private International Law Vol. II, 896 (898). 22 23

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would have been so immune”.28 Where these or similar rules are applicable, immunity cannot be denied solely on the grounds that the company is a separate legal entity. Yet, again, the extraction or processing of fossil energy or the production of fossil energy-consuming equipment will practically always be a commercial activity, even if the ultimate goal might be, for example, to finance the state’s budget or support the power supply necessary for a state’s economy. The fact that the activities of the stateowned companies are of a commercial nature is also not negated by the fact that they are sometimes carried out or enforced against the will of the local population through military or police authority.29 In sum, legal suits against states or state corporations as emitters of greenhouse gases are usually not barred by immunity.

2. “Political question doctrine” as a limitation to cross-border proceedings As explained sub 1. b) aa), civil law claims against foreign states trying to force the 10 states to adopt stricter regulations in order to reduce global warming will be barred by the doctrine of immunity, while claims against foreign corporations will not. However, such private claims can have an indirect impact on the public policy of the state in which the emitters are located. Especially in the US, courts have tended to use the “political question doctrine” and the principle of separation of powers30 in order to deny the admissibility of civil law claims against fossil energy producers.31 In a cross-border case, one could therefore argue that the decision of a court in State A awarding damages because of greenhouse gas emissions caused by corporations located in State B amounted to an interference in the foreign policy of the forum state (State A), which should be left to the legislative and/or executive branches of the forum state’s political system. Courts could therefore be tempted to deny their ability to adjudicate in such cases. However, this line of argument is unconvincing. If it were to be followed, hardly any cross-border civil law litigation for torts committed abroad would be admissible, since every award of damages or compensation for acts or omissions committed abroad necessarily involves a verdict on the legality of such acts or omissions that is measured against the substantive rules of the applicable law. Awarding damages in cases of tortious liability, also in cross-border cases, is undoubtedly one of the original functions of civilian courts. The fact that large-scale cross-border litigation may also have a certain impact on foreign policy relations between the forum state and the home state of the defendant(s) is normal and cannot bar the judiciary from carrying out its proper functions.32

III. Jurisdiction 1. Introduction a) Meaning and relevance of international jurisdiction. International jurisdiction 11 deals with the question which states’ courts are competent to hear a case that has one or several cross-border-element(s). This question is often of crucial significance, since jurisdiction determines the place and language of the court proceedings and, above all, the applicable rules of procedure, i.e. the respective roles (and presence) of judge and jury; the availability of class actions or other instruments of collective redress; the rules In greater detail Dicey/Morris/Collins, The Conflict of Laws Vol. I, 15th ed., 2012, mn. 10–009. Doe v. Unocal Corp., Ninth Circuit Court of Appeals, 18.9.2002, 395 F.3d 932. 30 As to the role of courts in climate protection generally, cf the contribution by Payandeh, Part 1, C. 31 Cf in greater detail Gerrard, Climate Change Litigation in the USA, in this volume. 32 In the same vein Dutta, p. 63. 28 29

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on evidence; and the availability of pre-trial discovery. It also determines the cost of the lawsuit and the rules on cost allocation (i.e. whether the unsuccessful party bears not only its own costs, but also the cost of its opponent’s legal representation). Finally, in the absence of harmonised or uniform rules on conflict of laws, international jurisdiction will also determine the applicable conflict rules (lex fori principle) and hence the substantive law which will be applied to the facts.33 12

b) Connection with recognition and enforcement. In the absence of choice of court agreements between the parties, jurisdiction in climate change litigation cases will mostly be non-exclusive so that the plaintiff may choose between two or more possible fora. Apart from the factors that have just been mentioned, the chances of recognition and enforcement should play a key role in deciding where an action should be brought. Unlike arbitral awards, where the highly successful New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) guarantees recognition and enforcement in more than 160 states, judgements by state courts are only granted easy and swift cross-border recognition and enforcement among EU Member States (see Arts. 36 et seq. Brussels Ibis Reg.), and to a slightly lesser extent among the contracting states of the Lugano Convention (see Arts. 33 et seq.).34 The Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters 2019, which will be a considerable step forward, was just concluded on 2 July 2019 and is not yet in force. Where no multilateral basis for cross-border recognition and enforcement exists, parties will have to consult bilateral treaties and the autonomous national rules of each state in which recognition and enforcement is sought. In Germany, for example, these are §§ 328 and 722, 723 ZPO. If difficulties with respect to recognition and enforcement are to be avoided, suits for the payment of damages should only be brought in a state where the defendant has patrimony equal to the potential damages; suits for acts or omissions on the side of the defendant should be brought in front of courts which can de facto reach the defendant via an injunction or penalty.

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c) Overview of legal sources. There is to date no generally applicable international treaty on jurisdiction. The 2005 Hague Convention on Choice of Court Agreements (in force since 1.10.2015) is limited, as the title suggests, to jurisdiction on the basis of contractual agreements between the litigants. In addition, Art. 2 (2) excludes from its ambit “(j) claims for personal injury brought by or on behalf of natural persons” as well as “(k) tort or delict claims for damage to tangible property that do not arise from a contractual relationship”. Typical climate change litigation based on an alleged, present or future damage to the lives, health and/or property of individuals therefore falls outside the scope of the 2005 convention. The Hague Convention of 2 July 2019 is limited to recognition and enforcement (and is not yet in force). Within the EU, jurisdiction has been unified since 1968, first by the Brussels Convention and then, in 2001 and 2012, by the Brussels I and Ibis (or Brussels I recast) regulations.35 The following references are to the current, 2012 Brussels Ibis Regulation (No. 1215/2012). The Lugano Convention (2007) between the EU, Denmark, Norway, Switzerland and Iceland mirrors to a large extent the 2001 Brussels I Regulation and is to be interpreted in line with the jurisprudence of the CJEU on the regulation; see Protocol No. 2 on the Uniform Interpretation of the Lugano Convention. The UK has 33

Van Loon, ULR (2018), 298 (305 et seq.). The Brussels I Reg. of 2012 has abolished the necessity of a separate exequatur, cf Art. 39 Brussels I Reg., whereas it still exists under the Lugano Convention, Arts. 38 et seq. 35 For a brief account of the legislative history cf Bogdan/Pertegás Sender, Concise Introduction to EU Private International Law, 4th ed. 2019, p. 5 et seq. 34

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signalled its willingness to accede to the Lugano Convention in its own right once the transition period after Brexit will have expired on 31 December 2020.36 In the absence of any applicable multilateral or bilateral treaty, each state is free to follow its own principles and rules on jurisdiction. States have no duty arising from public international law or customary law to open their national courts for international litigation.37

2. Brussels Ibis Regulation and Lugano Convention a) Applicability. aa) Subject matter must be “civil and/or commercial”. The 14 jurisdictional rules of the Brussels Ibis Regulation and of the Lugano Convention apply where the subject matter of the lawsuit is civil and/or commercial, whatever the nature of the court or tribunal (Art. 1 (1) Brussels Ibis Reg. and Lugano Convention). Climate change litigation for damages in case of injuries to health or property and for financing protective measures (i.e. protection against floods, droughts, etc.) against companies that engage in fossil energy extraction or consumption is clearly a “civil” matter within the meaning of Art. 1 (1). For actions against states with a view to a stricter climate protection policy, see supra II. 1. b). These will regularly fall into the category of “acta iure imperii” and therefore remain outside the ambit of the Brussels Ibis Reg. and the Lugano Convention. bb) Personal applicability. As a matter of principle, the defendant must be dom- 15 iciled in one of the Member States of the EU38 or contracting states of the Lugano Convention39 (Arts. 4 (1) and 6 (1) Brussels Ibis Reg. and Arts. 2 (1) and 4 (1) Lugano Conv.). For determining the domicile of natural persons, courts will apply their domestic law (Art. 62 Brussels Ibis, 59 Lugano Convention); however, for companies or other legal persons, the instruments define the notion of “domicile” autonomously as the place where its statutory seat (in the UK, Ireland and Cyprus: registered office), central administration or principal place of business is located (Art. 63 Brussel Ibis, Art. 60 Lugano Conv.). If the defendant is domiciled in a third state, the Regulation can still apply in litigation arising from consumer or employment contracts (Art. 18 s.1, Art. 21 s. 2); in case of a choice of court agreement (Art. 25); or where an exclusive jurisdiction exists under Art. 24. However, none of these alternatives is practically relevant in climate change litigation, since the European Court of Justice (CJEU) refused to apply Art. 24 no. 1 (at the time of the decision still Art. 16 no. 1 Brussels Convention) to a case where cross-border emissions from a nuclear power plant situated in a third state affected immovable property situated in the EU.40 Therefore, if the defendant is domiciled in a third state, Member States’ courts will usually apply their domestic rules on international jurisdiction. cc) Application in time. Since 1968, there have been various versions of the Brussels 16 and Lugano conventions and of the Brussels Regulation; therefore, when the lawsuit began must be taken into account. If the suit was filed after 10 January 2015, the 36 Cf https://www.gov.uk/government/news/support-for-the-uks-intent-to-accede-to-the-lugano-convention-2007 (last viewed on 17.2.2020). 37 Dutta, p. 47 with further references. 38 The UK remains to a Member State until 31 December 2020. For future perspectives cf fn. 36 and accompanying text. Denmark is not a Member State for the purposes of the Brussels and Rome Regulation since it does not take part in measures under Arts. 81 et seq. TFEU. However, Denmark is bound to the Brussels I Reg. (2001) through a separate bilateral treaty with the EU, in force since 1 July 2007, cf OJ 2007 L 94/70. 39 Dasser, in: Dasser/Oberhammer, Lugano Übereinkommen, 2nd ed., 2011, Art. 2 mn. 10. 40 ECJ Case C-343/04 Land Oberösterreich v ČEZ a.s. [2006] ECR I-4586.

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Brussels Ibis Regulation applies (Arts. 66 and 81 Brussels Ibis Reg.). For the Lugano Convention, the relevant time has to be fixed individually for each contracting state (Art. 63 (1) Lugano Conv.). b) General jurisdiction at the defendant’s domicile: Art. 4 (1) Brussels Ibis Reg. Article 4 (1) Brussels Ibis Reg. (= Art. 2 (1) Lugano Conv.) renders the courts of the Member State where a company is domiciled competent for all civil or commercial suits against the company. Due to the alternative definitions of the company’s seat in Art. 63 Brussels Ibis Regulation/Art. 60 Lugano Conv., see supra, a) bb), plaintiffs can choose whether they want to sue the company at its statutory seat, its central administration or its principal place of business if those are situated in different Member States. The general jurisdiction according to Art. 4 Brussels Ibis is mandatory and cannot be rejected by Member States’ courts on the basis of a “triable issue” or “good cause of action” test.41 According to the jurisprudence of the CJEU (Owusu),42 there is also no room for the doctrine of forum non conveniens.43 In the same cause célèbre, the court held that Art. 4 (1) Brussels Regulation could be applied, although both the defendant and the plaintiff were domiciled in the same Member State and the only cross-border element (in casu the place where the harm occurred) connected the case with a third state.44 18 It follows from this jurisprudence that a company that is deemed to be responsible for greenhouse gas emissions and that has its statutory seat, central administration or principal place of business in a Member State can be sued according to Art. 4 (1) Brussels Ibis Reg. for its global activities and for the global damages caused by them. Theoretically, it remains possible to raise the defence of an “abuse of EU law”, but in the context of Art. 4 Brussels Ibis Reg., the threshold is extremely high and practically insurmountable.45 It must, however, be kept in mind that Art. 4 (1) Brussels Reg./Art. 2 (1) Lugano Convention only covers lawsuits filed against the company itself, as a separate legal entity. Neither the Brussels Reg. nor the Lugano Convention embraces the idea of a joint or single forum for suits against groups of companies (“enterprise jurisdiction”, Konzerngerichtsstand). If the plaintiff wants to combine proceedings against a parent company and its (foreign) subsidiaries, jurisdiction has to be established for each defendant separately (but see below, (d), for joint claims). 17

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c) Special jurisdiction for actions in tort: Article 7 No. 2 Brussels Ibis Regulation. aa) CJEU: Place where the harmful event occurred or location of damage. Of the various headings under which Arts. 7–9 Brussels Ibis confer special (or “specific”) jurisdiction, Art. 7 No. 2 is particularly pertinent in the context of climate change litigation. Note, however, that its applicability always presupposes that the defendant is 41

Van Lith, in: Dickinson/Lein (eds.), The Brussels I Regulation Recast, 2015, mn. 3.08 et seq. ECJ Case C-281/02 Andrew Owusu v N. B. Jackson and others [2005] ECR I-01383. = IPRax 2005, 244 with case note by Heinze/Dutta. 43 Cf Cheshire/North/Fawcett, Private International Law, pp. 462–464. “Owusu” and the exclusion of forum non conveniens is also respected under the Lugano Convention, cf Dasser, in: Dasser/Oberhammer, Lugano Übereinkommen, Art. 2 mn. 18. Therefore, should the UK become a party to Lugano after the end of the transition period (supra fn. 36), its courts could not return to applying this doctrine. 44 ECJ, Andrew Owusu v N. B. Jackson and others (fn. 42). For the parallel jurisprudence of the Swiss Bundesgericht with respect to the Lugano Convention (BGE 135 III 185 E. 3.3.), cf also Dasser in: Dasser/ Oberhammer, Lugano Übereinkommen, Art. 2 mn. 10 with further references. 45 Cf UK Supreme Court 10.4.2019 – [2019] UKSC 20, Vedanta v Lungowe, mn. 31–34 (per Lord Briggs); Lehmann/Eichel, RabelsZ (2019), 77 (89); Hess/Mantovani, Current developments in forum access: comments on jurisdiction and forum non conveniens, Max-Planck Institute Luxembourg for Procedural Law, Research Paper Series 2019 (1) at fn. 90 (available at https://papers.ssrn.com/abstract=3325711). 42

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domiciled in another EU Member State (see supra, a) (ii)). Art. 7 No. 2 Brussels Ibis (= Art. 5 s. 3 Lugano Convention) embraces claims for tortious liability, both for damages and for protective measures against future infringements, since the wording refers explicitly to the “place where the harmful event occurred or may occur”.46 With relation to the definition of the place where the harmful event occurred, the CJEU has held ever since its famous decision in Bier/Mines de Potasse47 that it is both the place where the defendant acted and the place where the damage or the injury occurred. The plaintiff therefore has a right to forum shopping. In this particular case, a mining company located in France had allowed polluted water to flow into the Rhine, subsequently damaging the property of a Dutch farmer. The court held that the farmer could bring his suit either in France, where the defendant was located and where it had acted (or neglected to act), or in the Netherlands, where the plaintiff’s property had been adversely affected. If one applies this reasoning to climate change litigation, tortfeasors clearly face the 20 danger of being sued in every Member State, since the adverse effects of greenhouse gas emissions do not stop at national borders and can through an adverse effect on the climate, cause damage to health and property everywhere. Of course, the rules on lis pendens would prevent parallel proceedings (see Arts. 29 et seq. Brussels Ibis Regulation), but plaintiffs could still shop for the best available forum. bb) CJEU: Multi-state torts. In cases involving the infringement of personality rights 21 through mass media and the internet, the CJEU has employed different techniques in order to limit the number of possibly competent fora: in the older Shevill case, where a newspaper publisher in France infringed the rights of a person domiciled in England, the court limited the amount of damages which the plaintiff could possibly recover in England to the sum that was proportionate to the number of newspapers of that particular issue that were sold in England. The plaintiff could only sue for the full amount at the domicile of the publisher. In a more recent decision (eDate Advertising),48 where the infringement occurred through an article published on the internet (which made the calculation of the infringements for each individual jurisdiction where the article was potentially visible rather difficult, if not impossible), the Court held that the full amount of damages could either be claimed at the domicile of the tortfeasor or, alternatively, be claimed under Art. 7 No. 2 Brussels Ibis Reg. at the place where the injured person had the centre of his or her interests, thus equating the place of the damage with the victim’s habitual place of residence. cc) Application to climate change litigation. With respect to claims for damages 22 because of climate change-related natural events, such as storms, droughts, floods, heatwaves, etc., courts could face a similar question: Can a company that causes greenhouse gas emissions be sued in all Member States where its activities have had or can have a detrimental effect on the plaintiffs’ life, health or property? Does the (potential) tortfeasor need protection against forum shopping? Lehmann and Eichel, in a recent publication, in fact hold that defendants in climate change litigation need protection against the danger of potentially global and therefore unforeseeable lawsuits.49 They suggest that instead of limiting jurisdiction by requiring a causal link (which in their 46 Cf Cheshire/North/Fawcett, Private International Law, p. 270; Mankowski, in: Magnus/Mankowski, Brussels Ibis Regulation, Art. 7 mn. 395; Lein, in: Dickinson/Lein (eds.), The Brussels I Regulation Recast, mn. 4.69 et seq. 47 ECJ Case C-21/76 Handelskwekerij G. J. Bier BV v Mines de potasse d’Alsace SA [1976] ECR I-01735. 48 ECJ Cases C-509/09 and C-161/10 eDate Advertising GmbH v X [2011] ECR I-10269 (case note W.-H. Roth, IPRax 2013, 215). 49 Lehmann/Eichel, RabelsZ (2019), 77 (90 et seq.).

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view would burden the decision on jurisdiction with a discussion of the merits) or by making foreseeability a criterion (as in Art. 5 Rome II Regulation with respect to product liability), a distinction between direct and indirect damage should be introduced, following the CJEU’s judgment in Lazar/Allianz.50 Since most damage through global warming is indirect, meaning that a storm or other change of natural circumstances must first be triggered through global warming before actual damage to health, life or property will occur, all damage would be too indirect to link the damage to a given forum. As a result, in their view, companies that are said to have contributed to global warming can only effectively be sued at their seat or at the place where the act giving rise to the damage occurred – a place which will usually coincide with the company’s central administration or principal place of business. Consequently, in the view of these authors, there will be no alternative special jurisdiction for tortious liability in climate change litigation cases. 23 Comment: In the present author’s view, this line of argument is unconvincing. First of all, one may question whether the jurisprudence of the CJEU, which was developed for multi-state infringements of personality rights, may be transferred as a whole to other multi-state delicts. With respect to such infringements, courts have to weigh the constitutional rights of journalists, publishing houses and the public (i.e. freedom of speech and freedom of information) against the protection of personality rights.51 Given the fact that Member States hold very different views on balancing these interests –so different, in fact, that the matter was even left out of the Rome II Regulation (see Art. 1 (2) (g)) – it is unsurprising that the CJEU felt that it should protect publishing houses against their potential answerability in all Member States in which an article was somehow available. In contrast, there is no reason why greenhouse gas emitters should need such special protection. They are usually equipped with the financial means to protect their legal and commercial interests in a number of different fora; whether the standards of liability will grossly differ from one jurisdiction to another (as they do with respect to the protection of personality rights) is still to be seen. Victims of cross-border torts should not have their right to choose an appropriate forum limited and lose the ability to make use of their right to forum shopping under the Bier/Mines de Potasse case, just because this may lead to a choice that is not in the best interest of the emitters. In contrast, the fact that damage due to climate change does in fact only occur where it triggers some natural event such as storms, etc., makes it inherently difficult for the plaintiff to prove the causal link between the act (or omission) and the damage. This fact should therefore not be used in addition to hinder the plaintiffs’ chance to choose a forum where the jurisprudence of the CJEU allows them to do so. Even in the Bier case, the property of the Dutch farmer was not directly damaged through the actions of the French mine; rather, the pollution only came to the farmer’s land because he himself used or planned to use the water from the Rhine for his plants. 24 Even if one subscribes to the idea that the CJEU’s jurisprudence in Shevill and eDate Advertising is not limited to violations of personality rights by the media, but can or must be extended to all multi-state torts,52 such an application does not lead to a complete denial of the plaintiff’s right to sue in the specific forum prescribed by Art. 7 No. 2 Brussels Ibis Reg./Art. 5 No. 3 Lugano Convention. Rather, it follows from eDate Advertising53 that the victims of multi-state injuries do have a right to sue for the full 50

ECJ Case C-350/14 Florin Lazar v. Allianz SpA [2015] ECLI:EU:C:2015:802. Cf foremost the famous Fiona Shevill case: ECJ Case C-68/93 Fiona Shevill v Presse Alliance SA [1995] ECR I-00415. 52 Cf for example Oberhammer, in: Dasser/Oberhammer, Lugano Übereinkommen, Art. 5 mn. 121. 53 Supra fn. 48. 51

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amount of damages sustained where their interests are primarily affected, which – in cases involving personality rights – was held to be their habitual residence. Following this line of jurisprudence, victims of natural events triggered by climate change must at least be allowed to choose between bringing an action at the tortfeasor’s domicile and suing for damages or protective measures in those states where their lives, health or property are affected, i.e. at their habitual residence. Finally, even under the CJEU’s “mosaic” approach in Shevill,54 the plaintiffs could still institute proceedings in their home jurisdiction with respect to that part of the overall damage that has occurred or might occur in the future within the forum state. They are only barred from suing the defendant company at an individual locus damni for EU-wide damage or protective measures.55 This view is supported (and not contradicted, as Lehmann and Eichel suggest) by 25 Recitals 16 and 17 of the Rome II Regulation, which the CJEU cited approvingly in Lazar:56 “(16) Uniform rules should enhance the foreseeability of court decisions and ensure a reasonable balance between the interests of the person claimed to be liable and the person who has sustained damage. A connection with the country where the direct damage occurred (“lex loci damni”) strikes a fair balance between the interests of the person claimed to be liable and the person sustaining the damage, and also reflects the modern approach to civil liability and the development of systems of strict liability. (17) The law applicable should be determined on the basis of where the damage occurs, regardless of the country or countries in which the indirect consequences could occur. Accordingly, in cases of personal injury or damage to property, the country in which the damage occurs should be the country where the injury was sustained or the property was damaged respectively.” Clearly, therefore, the place where victims of climate change may suffer personal injury or damage to their property is not too remote, indirect or unforeseeable; instead, it constitutes a suitable forum for an action in tort under Art. 7 No. 2 Brussels Ibis Regulation. There is no need to reduce that forum’s effectiveness to zero through a criterion of “directness” which is nowhere reflected in either the wording of Art. 7 No. 2 itself or in the jurisprudence of the CJEU.57 d) Special jurisdiction for joint claims against domestic anchor defendant and 26 foreign subsidiary. Article 8 No. 1 Brussels Ibis Regulation (= Art. 6 No. 1 Lugano Convention) makes it possible to sue a co-defendant together with a so-called “anchor defendant”, “provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings”. According to the CJEU in Painer/Standard, the merits of the cases against all co-defendants do not need to be judged according to the same applicable law.58 However, in order to avoid misuse of the provision, the anchor defendant must be sued under his or her general head of jurisdiction (Art. 4 s. 1 Brussels Ibis Reg.).59 The provision does only apply to co-defendants who are them54

Supra fn. 48. Mankowski, in: Magnus/Mankowski, Brussels Ibis Regulation, Art. 7 mn. 257; Bogdan/Pertegás Sender, Concise Introduction to EU Private International Law, p. 48 et seq. 56 Supra fn. 50. 57 In the Lazar case (fn. 50), the ECJ held that the damage to the health of the father of the victim of a road accident, which happened in Italy, was an indirect damage within the meaning of Art. 4 (1) Rome II Regulation. This led to the law applicable to the tortious liability as a whole being determined by the place where the accident had occurred. The case did not deal with jurisdiction and can therefore not be cited to deny a victim’s right to sue at his or her domicile because of damage to his or her health. 58 ECJ Case C-145/10 Eva-Maria Painer v Standard VerlagsGmbH and Others [2011] ECR I-12533; cf Cheshire/North/Fawcett, Private International Law, p. 285. 59 ECJ Case C 51/97 Réunion européenne SA and Others v Spliethoff’s Bevrachtingskantoor BV and the Master of the vessel Alblasgracht V002 [1998] ECR I-06511; BGH 24.2.2015, NJW 2015, 2429. 55

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selves domiciled within the EU. If a plaintiff wants to bring a joint lawsuit against a parent company domiciled in the EU and its third-state subsidiary, he or she must include the latter on the basis of autonomous national law, if applicable. There has been some discussion in English courts as to whether Art. 8 (1) Brussels Ibis Reg. also requires that the case against the anchor defendant have a “good cause of action” or a “triable issue”, in order to avoid use of the provision as a mere vehicle for suing the codefendants outside of their general jurisdiction.60 27 In climate change litigation, Art. 8 No. 1 Brussels Ibis Reg. can be used to bring a suit against a parent company located in one Member State, in accordance with the criteria in Art. 63 Brussels Ibis Reg., as well as actions against its subsidiaries located in various other Member States. If the co-defendants’ commercial activity and potential impact on climate change is identical, the prerequisites of Art. 8 No. 1 Brussels Ibis Reg. will be met. This is true even if the concrete damage that has occurred or that can occur at the co-defendants’ different places of business is not identical due to differences in the natural environment of the various Member States.

3. EU Member States’ autonomous rules on jurisdiction 28

If according to Art. 63 Brussels Ibis Reg. the defendant company’s domicile is not located in a Member State, Member States’ courts will determine their jurisdiction according to the autonomous national lex fori. Different heads of jurisdiction can become practically relevant, as will be shown below.

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a) Place of damage for liability in tort. Where the lex fori allows claims to be brought under national rules at the place where the damage occurred, victims of damage related to climate change may bring an action in tort at the place where their health or property has been adversely affected. This will usually be their domicile. Such a rule can be found in, for example, § 32 ZPO (Germany), since German courts consider both the place where the tortious act was committed and the place of the injury to be relevant.61

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b) Joint action against EU parent company and third-state subsidiary. Joint claims against a parent company domiciled in the EU (or a contracting state of the Lugano Convention) and a subsidiary domiciled in a third state represent another practically relevant scenario where domestic heads of jurisdiction come into play. While jurisdiction for the suit against the parent company may be founded on Art. 4 Brussels Ibis Reg/Art. 2 Lugano Convention, the third-state subsidiary, being a separate legal entity, cannot be sued under either Art. 4 Brussels Ibis Reg (Art. 2 Lugano Convention) or Art. 8 No. 1 Brussels Ibis Reg (Art. 6 No. 1 Lugano Convention). Some Member States have separate, autonomous rules under which it is possible to include the claim against the subsidiary in accordance with the standards set in Art. 8 No. 1 Brussels Reg.; see for example Art. 7 (1) of the Dutch Code of Civil Procedure.62 Others adopt a more restrictive approach and allow the courts a greater deal of discretion. Under English law, for example, the second defendant may be served outside the jurisdiction pursuant 60 Cf Cheshire/North/Fawcett, Private International Law, p. 287; Matthias Weller, Haftung englischer Konzernmütter für Delikte drittstaatlicher Töchter im Spiegel des zuständigkeitsrechtlichen Missbrauchseinwands, in: Hess/Jayme/Mansel (eds.), Liber Amicorum Christian Kohler, 2018, p. 583 et seq. 61 Cf Toussaint, in: Vorwerk/Wolf (eds.), BeckOK ZPO, 35th Edition, 01.01.2020, mn. 12 with further references. 62 This head of jurisdiction was used in the famous Milieudefensie case, cf Gerechtshof Den Haag, Milieudefensie et al. v. Royal Dutch Shell plc., 18 December 2015, NL:GHDHA:2015:3586. Cf also Hess/ Mantovani, (fn. 45), text at fn. 105.

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to Part 6 Practice Direction B para 3.1. if the plaintiff can show that “(i) the claims against the anchor defendant involve a real issue to be tried; (ii) that it is reasonable for the court to try that issue; (iii) that the foreign defendant is a necessary or proper party to the claims against the anchor defendant; (iv) that the claims against the foreign defendant have a real prospect of success; (v) that, either, England is the proper place in which to bring the combined claims or that there is a real risk that the claimants will not obtain substantial justice in the alternative foreign jurisdiction, even if it would otherwise have been the proper place, or the convenient or natural forum.”63 However, a third group of Member States (including, for example, Germany) does not have any autonomous rules on joint claims against third-state defendants at all. c) Exorbitant heads of jurisdiction. Furthermore, defendants domiciled in third 31 states can be sued under so-called “exorbitant heads of jurisdiction”, as mentioned in Art. 6 (2) and Art. 76 (1) (a) Brussels Ibis Reg.64 For example, in Germany, § 23 ZPO allows defendants located in third states to be sued before German courts if they have patrimony located within Germany, such as an account with a German bank.65 It is not necessary that the patrimony cover or equal the claim, but according to recent jurisprudence of the Bundesgerichtshof, the patrimony must at least cover the possible cost of execution.66 Whereas exorbitant heads of jurisdiction have been abolished between Member States, each person domiciled within a Member State can make use of that Member State’s exorbitant heads of jurisdiction in relation to third countries, irrespective of his or her nationality; see Art. 6 (2) Brussels Ibis Reg. (= Art. 4 (2) Lugano Convention).67

4. United States: Personal jurisdiction of state and federal courts Personal jurisdiction in US law is roughly equivalent to international jurisdiction in 32 European law.68 It is further divided into general jurisdiction (sub a) and specific jurisdiction (sub b).69 Where a court has general jurisdiction, it can adjudicate any claim, regardless of whether it is based on tort, property or any other legal foundation.70 In principle, rules on personal jurisdiction for interstate conflicts of jurisdiction are also applied to international cases.71 The US has a parallel system of state and federal courts; as a matter of principle, the state courts are competent (sub c). The jurisdiction of US courts is further subject to the doctrine of forum non conveniens (sub d). Implications for climate change litigation are summarised sub e). a) General jurisdiction. Traditionally, state enactments on jurisdiction (so-called 33 “long-arm statutes”) define personal jurisdiction (general and specific) in a broad and 63 Cf UK Supreme Court 10.4.2019 – [2019] UKSC 20, Vedanta v Lungowe, mn. 20 (per Lord Briggs); cf also Cheshire/North/Fawcett, Private International Law, pp. 335 et seq. 64 The list pursuant to Art. 76 (2) Brussels Ibis Regulation is published in OJ 2015 C 4/2. 65 § 23 sent. 2 ZPO states explicitly that a claim is located at the domicile of the debt. i.e. the bank. 66 BGH, Court Order of 22. September 2005, BGH-Report 2005, 1611 = BeckRS 2005, 11442; OLG Düsseldorf, BeckRS 2006, 1220; OLG Dresden NJW-RR 2007, 1145 (1146); OLG Frankfurt a. M., WM 2011, 2360 (2362); OLG München MDR 2015, 728; Schultzky, in: Zöller Zivilprozessordnung, § 23 ZPO, 33th ed., 2020, mn. 7. 67 Bogdan/Pertegás Sender, Concise Introduction to EU Private International Law, p. 41; van Lith, in: Dickinson/Lein (eds.), The Brussels I Regulation Recast, mn. 3.31. 68 Zekoll/Schulz, RIW 2014, 321. Schack equates “international jurisdiction” to “territorial jurisdiction”, cf Schack, Einführung in das US-amerikanische Zivilprozessrecht, 4th ed., 2011, mn. 61. 69 Cf Hay/Borchers/Symeonides/Whytock, Conflict of Laws, 6th ed., 2018, § 5.10. 70 Zekoll/Schulz, RIW 2014, 321 (322). 71 Schack, Einführung in das US-amerikanische Zivilprozessrecht, mn. 61.

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far-reaching way.72 They also apply to federal courts sitting in the same state.73 But since these acts are subject to the constitutional guarantee of due process (5th and 14th Amendments to the US Constitution),74 determination of jurisdiction in the US is a two-step process,75 in which the second step is largely a matter of case law.76 In International Shoe Company v. Washington,77 the Supreme Court held that general jurisdiction was not strictly limited to defendants who were physically present in the jurisdiction; therefore, corporations could be considered to be “present” in all states in which they engaged in “continuous and systematic business activity”.78 In two further cases, the Supreme Court confirmed that, as a matter of principle, a foreign corporation could be sued in the US if it had “continuous and systematic contacts” with the forum state.79 Generally speaking, it was held sufficient that the foreign corporation be “doing business” in the United States.80 Yet, since 2014, the Supreme Court has adopted a far more restrictive approach. In Goodyear v. Brown,81 the relatives of individuals from North Carolina who were the victims of a road accident in France sued the US parent company and some of its European subsidiaries in North Carolina for damages. While the lower instances assumed general jurisdiction, the Supreme Court denied it and held that “a court may assert general jurisdiction over foreign (sister-state or foreign-country) corporations to hear any and all claims against them when their affiliations with the State are so continuous and systematic as to render them essentially at home in the forum state.”82 Corporations are clearly “at home” where they have their place of incorporation and/or their principal place of business.83 Outside these criteria, general jurisdiction can 72 Hay/Borchers/Symeonides/Whytock, Conflict of Laws, § 5.14. Cf for example § 302 (a) of the Civil Practice Law and Rules of New York: “Acts which are the basis of jurisdiction: As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent: 1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or 2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or 3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or 4. owns, uses or possesses any real property situated within the state.” 73 Rule 4(k) (1) (A) of the Federal Rules of Civil Procedure; cf also Hay/Borchers/Symeonides/ Whytock, Conflict of Laws, § 5.15. 74 Hay/Borchers/Symeonides/Whytock, Conflict of Laws, § 5.1. The 5th Amendment relates to the jurisdiction of federal courts, the 14th Amendment is applied to state courts. 75 Hay/Borchers/Symeonides/Whytock, Conflict of Laws, § 5.14. 76 Cf Brand, 60 U.Pitt.L.Rev. 661 (1999); Brand, Comparative Method and International Litigation, University of Pittsburgh Faculty of Law, Legal Studies Research Paper Series, Working Paper no. 2020–03, available at ssrn.com, p. 21 et seq. 77 International Shoe Company v. Washington, 326 U.S. 310 (1945). 78 Hay/Borchers/Symeonides/Whytock, Conflict of Laws, § 5.4. 79 In Perkins v. Benguet Consol. Mining Co., 342 U.S. 437 (1952) the Supreme Court held that the courts in the US had general jurisdiction over a corporation domiciled in the Philippines since its CEO and main shareholder was resident in Ohio during the relevant time and ran an office there. In contrast, the Supreme Court denied jurisdiction in Helicopteros Nacionales de Colombia S.A. v. Hall, 466 U.S. 408 (1984) since in that case, the defendant company being sued because of a helicopter crash in Peru had merely purchased some products and services in Texas that were unrelated to the accident. 80 Zekoll/Schulz, RIW 2014, 321 (323). 81 Goodyear Dunlop Tyres, S.A. v. Brown, 131 S.Ct. 2846 (2011). 82 Goodyear Dunlop Tyres, S.A. v. Brown, 131 S.Ct. 2846 (2011) 2851. 83 Goodyear Dunlop Tyres, S.A. v. Brown, 131 S.Ct. 2846 (2011) 2853 et seq.; Hay/Borchers/Symeonides/Whytock, Conflict of Laws, § 5.13 conclude with these words: “Although [the Supreme Court]

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only be assumed in exceptional circumstances. These were not present in either Goodyear v. Brown or in the subsequent case of Daimler v. Baumann,84 where the plaintiffs, 22 Argentine nationals, sued the Argentine subsidiary of Daimler in Texas because of human rights’ violations which were said to have occurred during the military dictatorship in Argentina. The Supreme Court denied general jurisdiction of the US courts over the parent company, holding that although, as a matter of principle, general jurisdiction could be established even against a corporation which had neither its place of incorporation nor its principal place of business within the state, the plaintiffs could not demonstrate other circumstances which made the defendants “essentially at home” in Texas.85 As a consequence of these two recent decisions, it seems safe to state that in a case where a foreign plaintiff sues a foreign corporation because of an alleged wrong committed in a foreign state, US courts will deny general jurisdiction.86 b) Specific jurisdiction. Most “long-arm” statutes provide for specific jurisdiction for 34 actions in tort,87 but their use is again limited by due process. The Supreme Court recently stressed that specific jurisdiction for tort must still be viewed from the perspective of protecting the defendant and that it therefore only exists where the defendant’s acts connect him to the forum; the fact that the victim suffered damage in the forum state is by itself not sufficient to establish specific jurisdiction.88 Furthermore, in the 2017 decision of Brystol-Myers Squibb Co. v. Superior Court of California, the Supreme Court held that victims who were not resident in California could not sue a pharmaceutical company for damages. For personal jurisdiction, they could not rely on the fact that the company had employees and carried out a substantial part of its business in that state.89 This decision is regarded as limiting specific jurisdiction even further, especially for joint suits brought by state residents and non-residents together.90 In cases of statutory liability for environmental harm, out-of-state defendants can be 35 sued in the state in which the harm occurred.91 However, the line of cases which suggest this rule92 is limited to situations where the harm to the environment was directly caused by the activities of the defendant. It therefore seems doubtful whether it can be relied on for climate change litigation. In the still-pending litigation of City of Oakland and the People of California v. BP PLC and others,93 the District Court for the Northern disclaims the view that general jurisdiction exists only in a corporation’s principal place of business (and probably its state of incorporation) there is little to give one confidence that other forums with unrelated contacts are available. At the very least, it appears that such additional forums – if they exist at all – will have to approach the Perkins paradigm of the locus of important corporate decisions.” 84 Daimler AG v. Bauman, 134 S.Ct. 746 (2014). 85 Daimler AG v. Bauman, 134 S.Ct. 746 (2014), 761. 86 Van Loon, ULR (2018), 298 (307); Zekoll/Schulz, RIW 2014, 321 (327). 87 Cf fn. 72. 88 Walden v. Fiore et al., 25, 134 S.Ct. 1115 (2014); J. McIntyre Machinery, Ltd. v. Nicastro, 131 S.Ct. 2780 (2011); van Loon, ULR (2018), 298 (307); Hay/Borchers/Symeonides/Whytock, Conflict of Laws, § 7.4.: “The mere fact that a defendant’s negligent action is alleged to have caused effect or injury in the forum state does not, by itself, satisfy the minimum contacts test. Specific jurisdiction in a negligence case can be constitutionally established only through forum state conduct or effects and some purposeful effort on the part of the defendant, to affiliate with the state, […].” 89 Brystol-Myers Squibb Co. v. Superior Court of California, 582 U.S. (2017) Justice Sotomayor dissenting. 90 Van Loon, ULR (2018), 298 (307, fn. 37). 91 Cf Hay/Borchers/Symeonides/Whytock, Conflict of Laws, § 9.2. 92 Ohio v. Wyandotte Chemicals Corp., 401 US.S. 493; Branch Metal Processing, Inc. v. Boston Edison Co., 952 F.Supp. 893. 93 Cf City of Oakland and the People of the State of California v. BP, Chevron and others, order granting motions to dismiss for lack of personal jurisdiction, District Court for the Northern District of California 27 July 2018 (http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/casedocuments/2018/20180727_docket-317-cv-06011_order-1.pdf. Accessed 10.3.2020).

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District of California in 2018 denied specific jurisdiction94 of the Californian courts over BP and Royal Dutch Shell as foreign companies – and also over the US companies of Exxon Mobile and ConocoPhillips, which are incorporated in New Jersey and Delaware, respectively, and have their principal paces of business in Texas. Citing Brystol-Myers Squibb Co. v. Superior Court of California and Axiom Foods, Inc. v. Acerchem Int’l, Inc.,95 the judge held the following three requirements to be decisive: “(1) the defendant must either purposefully direct his activities toward the forum or purposefully avail himself of the privileges of conducting activities in the forum; (2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and (3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.” Applying the second prong part of this test, the judge further tightened the criteria: the existence of a causal link between the activities and the claim required that the plaintiff’s alleged harm (here, the global warming-induced sea level rise) would not have occurred “but for” each defendant’s respective California-related activities.” From this starting point, specific jurisdiction was bound to be denied, since, as the Judge stated, “it is manifest that global warming would have continued in the absence of all California-related activities of defendants.” 36

c) Exorbitant heads of jurisdiction: Transient rule. The traditional common law rule that in-state service of the summons establishes general jurisdiction (the so-called “transient rule”) is still good law in the US.96 However, it only applies to individuals who have received the summons while physically present in the forum state. It does not apply to corporations. Therefore, jurisdiction over corporations cannot be founded upon service of the summons to a company’s directors.97 Hence for climate change litigation, the rule is irrelevant.

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d) Subject-matter jurisdiction: Alien Tort Statute. In principle, jurisdiction lies with the state courts, with access to the federal courts as the exception.98 Such access is granted if the litigation “arises under federal law”,99 if there is a “diversity of citizenship”,100 or if a special head of jurisdiction exists, such as the Alien Tort Statute (ATS) from 1787.101 From the 1980s onwards, the ATS has often been used to bring human rights litigation in front of US courts even when there is no or hardly any connection with the territory of

94 General jurisdiction was not at stake, since it was evident that the four companies were not domiciled in California. 95 Axiom Foods, Inc. v. Acerchem Int’l, Inc, 874 F. 3d 1064, 1068 (9th Cir. 2017). 96 Cf Hay/Borchers/Symeonides/Whytock, Conflict of Laws, § 6.2. 97 Hay/Borchers/Symeonides/Whytock, Conflict of Laws, § 6.2. 98 On the current question whether climate change litigation by Rhode Island against 60 fossil fuel companies will be treated by state or federal courts, cf http://climatecasechart.com/case/rhode-island-vchevron-corp/?cn-reloaded=1. 99 28 U.S. Code § 1331: The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. 100 28 U.S. Code § 1332: (a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between (1) citizens of different States; (2) citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State; (3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and (4) a foreign state, defined in section 1603 (a) of this title, as plaintiff and citizens of a State or of different States. 101 28 U.S. Code § 1350: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

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the United States.102 However, in the famous Kiobel case of 2013,103 the Supreme Court effectively ended this practice.104 The court held that the ATS does not generally give access to the US courts for claims of foreign plaintiffs against foreign defendants for violations of human rights committed in a foreign country if other sufficient connections with the US are lacking. Kiobel was affirmed in Jesner v. Arab Bank, PLC.105 According to the Supreme Court, the fact that the defendant parent corporation owned a subsidiary that was incorporated in Delaware and had its principal place of business in New York was not considered to amount to a substantive connection with California, where the plaintiffs brought the suit. e) Forum non conveniens. Even if personal and subject-matter jurisdiction can be 38 established, US courts reserve their discretionary power to dismiss the claim on behalf of the plaintiff under the doctrine of forum non conveniens if there is another available forum that is clearly more appropriate.106 Although the doctrine may be defended as a mechanism for allocating adjudicative authority between countries,107 it has been heavily criticised for its practical application as a tool for generally insulating US-based transnational companies from taking responsibility for their actions abroad.108 Of course, the dismissal of an action based on forum non conveniens does not amount to a res iudicata; in practice, however, lawsuits are often not refiled in another jurisdiction, meaning that pleading forum non conveniens can effectively be used as a way to avoid liability altogether.109 If the lawsuits are successfully refiled and a judgment is handed down, US courts may still refuse recognition and enforcement against the defendant. This happened in Chevron, where inhabitants of Ecuador and Peru sued Chevron for damages because of environmental harm induced by Chevron’s oil operations in the two countries. The US courts first dismissed the suits, arguing that Ecuador was the appropriate forum despite claims that the judicial system in Ecuador was inapt and corrupt.110 Later on, however, after a court in Ecuador found Chevron liable to pay damages totalling $18 million, the US courts denied recognition and enforcement in the US (and prohibited enforcement worldwide) on the grounds that the judgment was a result of corruption.111 f) Consequences for climate change litigation against corporations concerning 39 damages or protective measures. According to these principles, lawsuits against USbased emitters of greenhouse gases can be instituted in those US states in which the companies are incorporated or have their principal place of business. However,

102 Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.1980); Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995); Doe I v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002). 103 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013). 104 Van Loon, ULR (2018), 298 (306): The Supreme Court “drastically limited the potential use of this Act.” 105 138 S.Ct. 1386 (2018). 106 Cf on this doctrine generally Hay/Borchers/Symeonides/Whytock, Conflict of Laws, § 11.8. et seq. In the US, the leading case is still Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). This doctrine is also applied in other common law jurisdictions, including the UK, insofar as the Brussels Ibis Regulation is inapplicable due to the defendant being domiciled outside the EU; cf Cheshire/North/ Fawcett, Private International Law, pp. 393 et seq.; Dicey/Morris/Collins, The Conflict of Laws Vol. I, mn. 12–007 et seq. 107 Cf Whytock/Robertson, 111 Colum.L.Rev. (2011), 1444 (1453). 108 Van Loon, ULR (2018), 298 (309), citing as examples the litigation which arose from the Bhopal disaster, US Court of Appeals, 2nd Circuit. In re Union Carbide Corp. Gas Plant Disaster at Bhopal India in December 1984, 809 F.2s 195, and the Chevron case, infra fn. 109 et seq. 109 Erichson, Stanford Journal of Complex Litigation, 2013, 417 (420 fn. 22 with further references). 110 Aguinda v. Texaco, Inc., 303 Federal Reporter 3d 470 (US Court of Appeals, 2nd Circuit 2002). 111 Chevron Corp. v. Donziger, 886 F. Supp. 2d 235 (2012); van Loon, ULR (2018), 298 (309).

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admissibility can always be subject to an application for dismissal on grounds of forum non conveniens, especially if relief is sought by foreigners for foreign injuries.112 Plaintiffs who try to sue foreign companies like Royal Dutch Shell or British Petroleum in the US with a view to either joining claims against all major fossil fuel companies worldwide or taking advantage of specific mechanisms of US procedural law (e.g. jury trial, pre-trial discovery, class action, contingent fee, punitive damages, etc.) will likely be denied access to US courts,113 whether state or federal.114 The fact that the company does business in the US, has a US-based subsidiary or has caused damage in the US is not considered to be a sufficient connection to the US. Another question is whether it is possible to sue the foreign subsidiary of a US corporation at the corporate domicile or principal place of business of the parent company. In Goodyear v Brown,115 the Supreme Court rejected the idea of a “single enterprise theory” that would disregard the corporate veils for jurisdictional purposes.116 It held instead that the corporate ties of a foreign subsidiary to its US parent company alone are not sufficient to establish general jurisdiction over the foreign subsidiary in the US. Rather, the plaintiffs need to show that the foreign subsidiary’s contacts with the forum state are “so continuous and systematic [as] to render it essentially at home” in the forum state.117

IV. Choice of Law 1. Introduction 40

Given the possible divergences between the various jurisdictions on the rules and standards on tortious liability for climate change-related acts or omissions, which law the courts will apply to a given case is important. As for jurisdiction, the cross-border element triggering a conflict-of-laws issue will regularly result either from the fact that the tortfeasor and the victims are located in different states or from the corporate structure of the defendant.118 There are no internationally uniform rules on the law applicable to liability in tort. Without any regional unification (see infra, 2: Rome II Regulation), it is therefore up to each state to define its own rules and connecting factors. It is also important to note the differences in the application of conflict rules: while many civil law jurisdictions apply conflict rules ex officio and treat foreign substantive rules as “law” that the court must ascertain itself (e.g. by commissioning expert opinions), in most common law jurisdictions, it is up to the parties to plead the applicability of conflict rules and to prove the content of foreign law to be a fact. If the parties fail to do so, the substantive rules of the forum will be applied notwithstanding 112

Erichson, Stanford Journal of Complex Litigation, 2013, 417 (420); van Loon, ULR (2018), 298 (309). Cf City of Oakland and the People of the State of California v. BP, Chevron and others, order granting motions to dismiss for lack of personal jurisdiction, District Court for the Northern District of California 27 July 2018 (http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/ sites/16/case-documents/2018/20180727_docket-317-cv-06011_order-1.pdf. Accessed 10.3.2020). Cf also van Loon, ULR (2018), 298 (308). 114 However, in Brystol-Myers Squibb Co. v. Superior Court of California, 582 U.S. (2017), a decision on the jurisdiction of the state courts of California, the Supreme Court emphasised in an obiter dictum (sub. IV) that it restricted its view to an interpretation of the due process clause of the 14th Amendment and reserved its opinion on due process in the federal courts (5th Amendment). 115 Fn. 81. 116 Fn. 81 at p. 13 et seq. 117 Fn. 81 at p. 13; cf also van Loon, ULR (2018), 298 (308). 118 Cf supra, I. 2. 113

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the cross-border nature of the case.119 Note, however, that despite their duty to apply conflict rules ex officio, courts sometimes tend to overlook the private international law dimension of cases. For example, in the case of the Peruvian farmer who claimed compensation from RWE because of the potential damage to his land in Peru as the result of the melting of a glacier, the LG Essen has applied German property law without giving any consideration to the fact that the affected immovable was situated in Latin America and that, because of the cross-border element, Art. 44 EGBGB and the rules of the Rome II Regulation should have been applied.120

2. EU: Liability in tort (delict) according to the Rome II Regulation a) Applicability. The 2007 EU Regulation on the Law Applicable to Non-Contractual 41 Obligations (Rome II) unifies the conflict rules among the Member States of the EU, except for Denmark. Like all other regulations in the area of conflict of laws, it is of “universal application” (Art. 3 Rome II), meaning that the courts of the Member States will apply its rules to every cross-border case, regardless of whether there is any possible connection of the facts with third states121 or whether the law of a third state might apply. Note, however, that the question whether conflict rules are to be applied ex officio or only upon request by the parties is not answered unanimously among the Member States (supra, 1.). Although one may argue that the status quo is incompatible with the spirit of the European unification of Private International Law (PIL), these differences persist in practice. According to Art. 31 Rome II, the Regulation shall only “apply to events giving rise to 42 damage which occur after its entry into force”, which was on 11 January 2009.122 The time at which proceedings are initiated is immaterial. In climate change litigation, the “event giving rise to damage”, meaning the event for which the tortfeasor is alleged to be responsible, will be the greenhouse gas emissions. For the most part, they will have occurred before the entry into force of the Rome II Regulation,123 meaning that the autonomous PIL of the Member States will apply with respect to that period of time. German courts, for example, would have to judge the applicable law according to Art. 40 EGBGB; however, the outcome would not be different from an application of Art. 7 Rome II (see below): both rules effectively enable the victim to choose between the law of the state where the damage is located and the law of the state where the event giving rise to the damage occurred. Article 2 (2) Rome II emphasises that the Regulation also applies to non-contractual 43 obligations that are “likely to arise”. Pursuant to Art. 2 (3) Rome II, it applies to “an event giving rise to damage” as well, and the notion of “damage” includes damage that is likely to occur. It is therefore undisputable that the Regulation also covers claims for injunctive relief or compensation for protective measures against future damage. b) Freedom of choice of law, Article 14 Rome II. Article 14 Rome II Regulation 44 grants parties the freedom to choose the applicable law either ex post (Art. 14 (1) (a)) or, if “all the parties are pursuing a commercial activity, also by an agreement freely 119 Cf in greater detail Kieninger, in: Leible (ed.), General Principles of European Private International Law, 2016, p. 357; Hartley, 45 ICLQ (1996), 271; Esplugues/Iglesias/Palao (eds.), Application of Foreign Law, 2011; Cheshire/North/Fawcett, Private International Law, p. 803. 120 Cf LG Essen, 15.12.2016, ZUR 2017, 370; neither does the court mention a choice of law pursuant to Art. 14 Rome II Reg. 121 Cheshire/North/Fawcett, Private International Law, pp. 801 et seq.; Halfmeier, in: Calliess (ed.), Rome Regulations, 2nd ed., 2015, Article 3 Rome II, mn. 11 et seq. 122 ECJ Case C-412/10 Deo Antoine Homawoo v GMF Assurances SA [2011] ECR I-11603, mn. 30. 123 For example, in the case pending before the OLG Hamm (supra fn. 5), it is claimed that RWE is responsible for greenhouse gas emissions that span 100 years.

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negotiated before the event giving rise to the damage occurred” (Art. 14 (1) (b). Unlike the rules on other special torts (see Art. 8 (3) and 6 (4)), Art. 7 on environmental damage (infra, c)) does not exclude freedom of choice of law, but for practical reasons, it seems only relevant where parties want to choose the law of the forum state after the proceedings have been instituted. 45

c) Special rule on environmental harm, Article 7 Rome II. Where liability for environmental harm is at stake, Art. 7 takes precedence over the general rule in Art. 4. Article 7 refers to Art. 4 (1) with modifications, but the rule on closer connection in Art. 4 (2) and the escape rule in Art. 4 (3) remain inapplicable.124

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aa) Applicability. Article 7 Rome II refers to “a non-contractual obligation arising out of environmental damage or damage sustained by persons or property as a result of such damage”. With a literal reading of the provision, one could argue that the rule only covers factual scenarios where the tortious act has a direct negative impact on the environment. If that were the case, Art. 7 would not cover typical climate change-related events, since the damage to persons or property through storms, floods, heatwaves, etc. is not the result of “environmental damage” in a strict sense because the accumulation of carbon dioxide and other greenhouse gases in the atmosphere and the consequential global warming is not per se damage to the atmosphere. Rather, it is the consequences of global warming that have a negative impact on the environment. However, according to the predominant opinion, Art. 7 Rome II nevertheless applies to climate change cases because it is held to be sufficient if the damage to persons or property is caused by an influence on or change in the environment.125 In other words, it suffices if there is some causal link between the change in the environment (to which the defendant has contributed) and the damage to persons or property.126 Article 7 includes torts such as nuisance, despite the fact that in some jurisdictions (e.g. under German law) a property law remedy might also exist (infra, 3).127

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bb) Place of damage rule. Article 7 principally refers to Art. 4 (1) Rome II Regulation and therefore leads to the application of the law at the place where the primary damage or injury that was directly or indirectly caused by the tortfeasor through an impact on the environment occurred. The location of further (mostly pecuniary) damage resulting from the injury of the victim’s health or property is irrelevant.128 For climate change cases, this means that the applicable law is that of the place where the damage to lives, health or property arising from the environmental impact of global warming has occurred or is likely to occur. Article 7 Rome II clearly only refers to Art. 4 (1), not to Art. 4 (2) or (3) Rome II Regulation. The application of Art. 7 and its lex loci damni rule is therefore strict and cannot be avoided, unless the victim chooses to use the law of the place where the damaging event occurred, see infra, cc). As a result, greenhouse gas-emitting corporations must potentially face liability under the law of all states where global warming is already damaging or threatening to damage lives, health and property. 124 Von Hein, in: Calliess (ed.), Rome Regulations, Article 7 Rome II, mn. 9; von Plehwe, in: Hüßtege/ Mansel (eds.), Nomos Kommentar-BGB, 3rd ed., 2019, Art. 7 Rom II, mn. 17. 125 Lehmann/Eichel, RabelsZ 2019, 77 (94); Junker, in: MünchKomm, 7th ed., 2018, Art. 7 Rom II-VO, mn. 12 with further references; G. Wagner, IPRax 2008, 1 (9); Wurmnest, in: Herberger/Martinek/ Rüßmann (eds.), jurisPK-BGB, 8th ed., 2017, Art. 7 Rom II-VO mn. 37; Huber, in: BeckOGK, 1.10.2019, Art. 7 Rom II-VO, mn. 33; Plender/Wilderspin, The European Private International Law of Obligations, 4th ed., 2014, mn. 21–020. 126 Lehmann/Eichel, RabelsZ 2019, 77 (95) with further references. 127 Plender/Wilderspin, The European Private International Law of Obligations, mn. 21–006 referring to ECJ Case C-343/04 Land Oberösterreich v ČEZ a.s. [2006] ECR I-4586. 128 Von Plehwe, in: Nomos Kommentar-BGB, Art. 7 Rom II, mn. 17.

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cc) Option. According to Art. 7 Rome II, the claimant has the right “to choose to 48 base his or her claim on the law of the country in which the event giving rise to the damage occurred”. This one-sided option is justified by the fact that the Regulation is intended to offer victims of cross-border damage to the environment a high and equal level of protection. If the place of damage rule were to be strictly followed, victims on different sides of a border between Member States could get different levels of compensation and protection, depending on the law at the place of the damage. Such inequality is to be avoided.129 With respect to greenhouse gas emissions, the relevant “event giving rise to the damage” is located where the emissions occur, not the place where the emitting corporation’s decisions are made.130 dd) Scope of the applicable law. Article 15 Rome II Regulation contains a non- 49 exclusive list of matters which are governed by the applicable law as defined by Art. 4 et seq. This includes in particular “(a) the basis and extent of liability, including the determination of persons who may be held liable”; “(c) the existence, the nature and the assessment of damage or the remedy claimed;” “(d) […] the measures which a court may take to prevent or terminate injury or damage or to ensure the provision of compensation;” and “(h) […] rules of prescription and limitation, including rules relating to the commencement, interruption and suspension of a period of prescription or limitation.” The CJEU has held that rules on prescription cannot be regarded as mandatory provisions within the meaning of Art. 16 Rome II Regulation.131 d) Article 17 Rome II Regulation. aa) Local data rule. Article 17 states that “in 50 assessing the conduct of the person claimed to be liable, account shall be taken, as a matter of fact and in so far as is appropriate, of the rules of safety and conduct which were in force at the place and time of the event giving rise to the liability.” The rule enables the court to take into account so-called “local data” when assessing the standard against which the acts of the tortfeasor are to be measured. The classic cases at which Art. 17 Rome II is directed are road accidents; see Rome II Regulation Recital 34. If the applicable law is determined by the common habitual residence pursuant to Art. 4 (2) Rome II, then it differs from the place where the harmful event occurred as well as from the location where the damage was sustained. In this instance, it goes without saying that the safety rules of the state where the tortfeasor acted (e.g. on maximum speed, etc.) must be taken into account when assessing liability. In contrast, it is questionable whether and to what extent Art. 17 should be applied to cross-border torts like environmental liability, where the harmful event and the damage are typically located in different states. According to the predominant view, Art. 17 may still be applied, but with caution and restrictions.132 Moreover, local data may be taken into consideration within the framework of the lex loci damni, but Art. 17 does not enable the court to replace the applicable law.133 Rather, courts have to weigh the pros and cons when deciding whether and to what extent local rules at the place of the damaging event should be considered.134 129

Cf Cheshire/North/Fawcett, Private International Law, p. 830. Lehmann/Eichel, RabelsZ 2019, 77 (96); Huber, in: BeckOGK, Art. 7 Rom II-VO, mn. 38. 131 ECJ Case C 149/18 Agostinho da Silva Martins/Dekra Claims Services Portugal SA [2019] ECLI:EU: C:2019:84. 132 Junker, in: MünchKomm, Art. 17 Rom II, mn. 9; von Hein, in: Calliess (ed.), Rome Regulations, Article 17 Rome II, mn. 8. 133 Cheshire/North/Fawcett, Private International Law, p. 831 and p. 871; Dicey/Morris/Collins, The Conflict of Laws Vol. II, mn. 35–071; Plender/Wilderspin, The European Private International Law of Obligations, mn. 18–121. 134 Bittmann, in: Weller (ed.), Europäisches Kollisionsrecht, 2016, p. 213, mn. 369. 130

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It has been suggested that Art. 17 Rome II Regulation should be used in climate change cases to the widest possible extent because the applicability of the lex loci damni was “unrelated” and “unforeseeable” for the emitters.135 The authors voice the concern that states (which may be non-EU Member States because of the universal application of the Rome II Regulation) may introduce new substantive rules, lowering the threshold with respect to the causal link between greenhouse gas emissions and the resulting natural events that cause damage to persons or property.136 They fear that such rules would be applicable against EU-based corporations on the basis of Art. 7 Rome II Regulation and therefore propose to counter this result through a far-reaching application of Art. 17. The authors suggest that the limits set for greenhouse gas emissions in the statutory rules in force at the location of the emitting facility or in the licences granted by domestic public authorities should be regarded as local data and should therefore restrict the application of tort law at the location of the damage.137 52 However, such a general application of the standards at the place where the emitter is located through Art. 17 would effectively displace any stricter liability rules of the lex loci damni, which is contrary to what the rule intends. It would lead to a race to laxity138 and therefore contravene the intention of the European legislator, who, in Recital 25 of the Rome II Regulation, stresses the need for a high level of protection against environmental damage (citing Art. 174 EC Treaty (now Art. 191 TFEU)) and the need to discriminate in favour of the person sustaining the damage.139 Moreover, it cannot be said that the location of the damage was unforeseeable. The greenhouse effect, its relation to carbon dioxide emissions and its potential to negatively impact the natural environment is well documented and has been known for decades.140 The fact that no one can predict exactly where and what kind of damage will occur through storms, floods, droughts and heatwaves is inherent in the kind of change to the atmosphere brought about by greenhouse gas emissions and can therefore not exempt the emitters from liability. 51

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bb) Article 17 and the possible impact of permits or authorisations in accordance with public law. Another practically important question relates to the possible impact of permits granted by state authorities pursuant to the law of the location of the emitter. Do such permits preclude or limit tortious liability according to the law of the state where the damage occurs or is likely to occur? Plender and Wilderspin state that “while the question 135 Cf Lehmann/Eichel, RabelsZ 2019, 77 (97 et seq.). The unforeseeable nature of the liability is stressed by Lehmann/Eichel, RabelsZ 2019, 77 (100). On the other hand, the authors emphasize at p. 101 that the emitters should be allowed to rely on authorisations issued by their home states because in those proceedings, the public authorities will have weighed the advantages of the activities of the emitters for the public welfare against the effects of global warming. The authors therefore admit themselves that the effects of global warming were known. Cf also p. 103 where the authors stress that – of course – the negative impact of the emissions on the climate were foreseeable, even when the permits were granted to the fossil energy companies. The fact that the legal analysis by Lehmann and Eichel is primarily resultsdriven is further evidenced by the text at p. 101: in their view, it is immaterial whether the protection of the emitters against liability in accordance with the lex loci damni is achieved through Art. 17, Art. 16 (mandatory provision) or the ordre public (Art. 26). 136 Lehmann/Eichel, RabelsZ 2019, 77 (96 et seq.). 137 Lehmann/Eichel, RabelsZ 2019, 77 (97), who, however, only cite Lehmann himself (Nomos Kommentar-BGB, Art. 17 Rom II, mn. 41) in support of this view. 138 Von Plehwe, in: Nomos Kommentar-BGB, Art. 7 Rom II, mn. 23. 139 Dicey/Morris/Collins, The Conflict of Laws Vol. II, 15th ed., 2012, mn. 35–069; von Plehwe, in: Nomos Kommentar-BGB, Art. 7 Rom II, mn. 23. 140 Cf Pöttker, Klimahaftungsrecht, p. 131 et seq. with numerous references. Knowledge of the risks of anthropogenic greenhouse gas emissions can be traced back to 1965, when President Lyndon B. Johnson’s Science Advisory Committee Panel on Environmental Pollution reported that by the year 2000, emissions “would modify the heat balance of the atmosphere to such an extent that marked changes in climate could occur.”

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does not admit of a straightforward answer, it is nevertheless clear, that this should not automatically be a good defence”.141 Older jurisprudence of German courts suggests that the effects of permits granted by public authorities remain limited to the territory of the issuing state in accordance with the principle of territoriality of public law.142 Courts in the Netherlands and Austria have taken a more liberal view and have accorded extraterritorial effect to such authorisations if (a) they were granted in accordance with existing public international law, (b) the standards for granting the authorisation in the issuing state equated to those of the state where the damage occurred, and (c) those who were affected by the permitted emissions in the state where the damage occurred were party to the proceedings and were able to voice their concerns.143 Although the Rome II Regulation has not explicitly embraced this approach, its adoption has been suggested pursuant to Art. 17 Rome II so that foreign authorisations may be recognised under Art. 17 where the three criteria are met.144 The opinion that seems to be predominant holds that only those administrative decisions which prohibit or prescribe a certain conduct can qualify as local data, but that Art. 17 Rome II Regulation should not be extended to permissive authorisations which emitters can but do not need to use. This is because the ratio of Art. 17 Rome II is restricted to the avoidance of a conflict of obligations.145 However, others would extend Art. 17 Rome II Regulation to permissive authorisations, although only within the limits of the applicable law. Therefore, it would not be possible to attribute to it a more far-reaching effect than it could have under the lex loci damni.146 According to von Plehwe, licences which do not originate from authorities of the forum state can only be taken into account as local data according to Art. 17 Rome II (i) if they are functionally equivalent and (ii) if the law of the state where the damage occurs grants those licences such extraterritorial effect. There can be no “recognition” of licences which were not granted by the forum state.147 The most far-reaching view in favour of emitters is again taken by Lehmann and 54 Eichel. In climate change litigation cases, the authors propose that authorisations pursuant to the law at the location of the emitter should be granted full cross-border effectiveness in all states where damage occurs, irrespective of whether the cross-border effects and possible damage were taken into account when granting the permission or whether the persons affected had the chance to be heard in the proceedings which led to the authorisation.148 The main argument is the unforeseeable nature of potentially global damage, which in their view distinguishes climate change liability cases from other environmental harm liability cases.149 Comment: The extreme opinion voiced by Lehmann and Eichel seems to be 55 motivated by the wish to protect fossil energy companies and other greenhouse gas producers from seemingly “unforeseeable” potential liability, although it is well docu141 Plender/Wilderspin, The European Private International Law of Obligations, mn. 21–028 with further references. 142 Cf BGH 10.3.1978, DVBl. 1979, 226, 227; cf also Unberath/Cziupka/Pabst, in: Rauscher, EuZPR – EuIPR Kommentar Vol. III, 4. ed. 2016, Art. 7 Rom II VO, mn. 46. 143 Rechtbank Rotterdam 16.12.1983, Ned Jur 1084, No. 341, para 8.7.; OGH 20.12.1988, JBl. 1989, 239; cf also von Hein, in: Calliess (ed.), Rome Regulations, Article 7 Rome II, mn. 34. 144 Unberath/Cziupka/Pabst, in: Rauscher, EuZPR – EuIPR Kommentar Vol. III, Art. 7 Rom II VO, mns. 46–48. 145 Mankowski, IPRax 2010, 389 (390 et seq.); Matthes, GPR 2011, 146 (150 et seq.); Siems, RIW, 2004, 662; v. Bar/Mankowski, Internationales Privatrecht II, § 2 mn. 423 et seq.; in the same sense Hohloch, in: Erman BGB, Art. 7 Rom II VO, mn. 17 (licenses are not a subject-matter of Art. 17). 146 Maultzsch, in: BeckOGK, Rom II-VO Art. 17, mn. 25 et seq. 147 Von Plehwe, in: Nomos Kommentar-BGB, Art. 7 Rom II, mn. 23. 148 Lehmann/Eichel, RabelsZ 2019, 77 (98 et seq.). 149 Lehmann/Eichel, RabelsZ 2019, 77 (100).

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mented that the effects of carbon dioxide emissions and the resulting possibilities and dangers of climate change have been known at least since the 1970s, even if the extent of the possible consequences were not yet known at that time.150 Leaving policy-driven interpretations aside and returning to the relevant statutory rules and the considerations given by the European legislator, it must be noted that Art. 17 Rome II Regulation only allows local rules at the state where the tortfeasor acted to be taken into account “where appropriate”.151 Moreover, Art. 17 is meant to apply to local legal prohibitions; it is not designed to grant extraterritorial application to local authorisations of damage.152 If one were to nevertheless subscribe to the idea that even permissive licences may be taken into account as local data,153 this must be done with caution and restriction.154 It must be considered whether and to what extent the global effects of greenhouse gas emissions (especially in the more vulnerable parts of the world) have been taken into account in the proceedings leading up to the authorisation. Furthermore, the effects of such authorisations on civil liability will always have to be assessed by the lex loci damni.155 In sum, Art. 17 cannot be used to reverse the decision made by the European legislator in favour of a high level of protection in cases of environmental harm.156 56

e) No analogous application of Article 5 (1) (ii) in cases of environmental liability. In order to protect emitters from accountability in accordance with the lex loci damni even further, Lehmann and Eichel propose to apply Art. 5 (1) (ii) Rome II Regulation by way of analogy.157 In their view, this rule shall come into play where (a) no public permit authorising the emissions has been granted, (b) the permission is void, (c) the permitted limits have been negligently exceeded or (d) a court finds that it would be inadequate to apply the law at the location of the emitter in accordance with Art. 17. In all these cases, the suggestion is to protect the emitters against liability through an analogous application of Art. 5 (1) (ii) if they could not reasonably foresee the exact damage that may have been caused or will be caused by global warming. The authors want to unrestrictedly apply the lex loci damni only where the alleged tortfeasor has obtained the permission fraudulently or has willingly and knowingly exceeded its limits.158 After having thus effectively denied the law at the location of the damage any say in the standard of care that should be exercised by emitters of greenhouse gases, the authors “comfort” the reader by stating that conscious environmental sinners can still be judged pursuant to the law at the place of the damage.159 In their summary, they stress that according to the analogous application of Art. 5 (1) (ii), the law at the location where the acts giving rise to the damage took place (i.e. the law at the emitters’ location) should govern liability for climate change “exclusively”.160

150

Pöttker, Klimahaftungsrecht, p. 131 with further references. Cf also Plender/Wilderspin, The European Private International Law of Obligations, mn. 21–028. 152 Von Plehwe, in: Nomos Kommentar-BGB, Art. 7 Rom II, mn. 23 at the end (with further references). 153 Maultzsch, in: BeckOGK, Rom II-VO Art. 17, mn. 25 et seq. 154 Maultzsch, in: BeckOGK, Rom II-VO Art. 17, mn. 27. 155 Von Plehwe, in: Nomos Kommentar-BGB, Art. 7 Rom II, mn. 24; Maultzsch, in: BeckOGK, Rom II-VO Art. 17, mn. 25 et seq. 156 Yet the exclusive decisiveness of the carbon dioxide limits set by the state where the emitter is located at the expense of the applicability of the lex loci damni under Art. 7 is exactly the result that Lehmann and Eichel propose; cf RabelsZ 2019, 77 (105). 157 Lehmann/Eichel, RabelsZ 2019, 77 (105–107). 158 Lehmann/Eichel, RabelsZ 2019, 77 (105–107). 159 Lehmann/Eichel, RabelsZ 2019, 77 (107). 160 Lehmann/Eichel, RabelsZ 2019, 77 (107). 151

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Comment: This suggestion does not find any support in the wording of the Regulation, 57 nor is it shared by other commentators.161 The general prerequisites for an analogy are (i) an unintended regulatory gap and (ii) comparable interests. There is no evidence that the European legislator unintentionally omitted a rule analogous to Art. 5 (1) (ii) in Art. 7 and the interests are not comparable. In contrast, Recital 20, directed at Art. 5 Rome II Regulation, highlights at the outset that “the conflict-of-law rule in matters of product liability should meet the objectives of fairly spreading the risks inherent in a modern high-technology society”. One element of such fair risk distribution is the rule on foreseeability in Art. 5 (1) (ii). On environmental liability, on the other hand, Recital 25 stresses that, “regarding environmental damage, Article 174 of the Treaty […] provides that there should be a high level of protection[,] […] fully justif[ying] the use of the principle of discriminating in favour of the person sustaining the damage”. Moreover, there is no parallelism regarding the interests involved. Technological innovation is, as a matter of principle, in the interest of public welfare. It seems therefore just and equitable to protect producers from unforeseeable liability risks and to allow them to control their risks through selected marketing. Greenhouse gas emitters, on the other hand, do not run a special risk created by technological innovation. Their liability risks are created by the unforeseeable nature of the concrete damage that is, however, inherent in the kind of impact the emissions have on the atmosphere. Furthermore, even if one favoured an analogy, Art. 5 (1) (b) merely states that the law at the producer’s location prevails if he or she could not have foreseen that the product was marketed in the state where the victim was resident, purchased the goods or suffered the injury. Translated to the issue of liability for cross-border emissions, this would mean that the emitter could not be held liable according to the standards of the lex loci damni if he or she could not have foreseen that the emission could reach the state where the damage occurred. However, it is clear that emitters of greenhouse gases must know that the emissions are transported into the atmosphere worldwide. Therefore, even if one would subscribe to the idea of an analogy (which is not done here), the result that Lehmann and Eichel want to achieve – i.e. that emitters could only be held liable according to the lex loci damni if they could reasonably foresee the specific damage in that jurisdiction162 – is not attainable via an application of Art. 5 (1) (ii). f) Internationally mandatory rules and ordre public. The choice-of-law rules of the 58 Rome II Regulation can theoretically be supplanted by the internationally mandatory rules of the forum state (Art. 16 Rome II Regulation) and its ordre public (Art. 26 Rome II Regulation). However, this author is not aware of any present internationally mandatory rule that cuts off or limits liability for cross-border harm through climate change. Presently, it is hard to predict whether any potential forum state (which, after what has been said on jurisdiction, will most likely be the corporate home of a large greenhouse gas emitter) will in the future pass internationally mandatory legislation to shield its corporations from climate change liability. Given the strong public opinion in favour of greenhouse gas reduction and international obligations to cut emissions, it seems hardly conceivable that such legislation will get passed, at least in Western democracies. Instead, as far as corporate social responsibility is concerned, the trend is towards internationally mandatory rules establishing (and not limiting) the liability of corporations for human rights violations and environmental harm.163 As for the 161

This is even admitted by the authors themselves, Lehmann/Eichel, RabelsZ 2019, 77 (106). Lehmann/Eichel, RabelsZ 2019, 77 (107). 163 Cf Mansel, ZGR 2018, 439 (444 et seq.); Weller/Pato, ULR 2018, 397 (412 et seq.); on French legislation: Nasse, ZEuP 2019, 773; for possible future regulations on a European level, cf the “Study on Due 162

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reservation of ordre public, even Lehmann and Eichel will not bring it into play (from the perspective of German law), even though they otherwise try to shield possible defendants from the applicability of foreign law that could take a stricter view on liability for climate change-related events with every conceivable argument.164

3. Autonomous PIL: Property law 59

In some jurisdictions, for example in Germany, damage to land or injuries resulting from activities carried out on immovable property may also give rise to remedies in property law (in Germany § 1004 BGB, § 906 (2) sent. 2 BGB). As a matter of principle, these remedies do not require negligence and are therefore particularly attractive for claimants. However, in order to avoid any divergence from EU conflict rules, the German PIL (Art. 44 EGBGB) submits these remedies to the rules contained in the Rome II Regulation so that there is no need to resort to the lex rei sitae.

4. US conflict of laws 60

As a matter of principle, US courts apply conflict-of-laws rules only if the parties plead foreign law; the latter is treated as fact, not as law.165 Choice of law rules are state law and are the same for both interstate and international conflicts. Despite the richness of case law in the US on the law applicable to tort generally166 and the great number of climate change cases filed in the US, it is hard to give an estimate as to which law US courts would apply, not least because choice of law questions do not seem to figure prominently in climate change cases.167 For tort, the traditional rule is the lex loci delicti or “last event” rule under which the applicable law is determined by the place where the injury was suffered.168 However, due to the so-called “conflicts revolution”, strict rules have partly given way to “approaches”.169 The 2nd Restatement reflects this development in § 145, according to which “(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6. (2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties, is centred.” For personal injury, § 146 of the 2nd Restatement gives preference to the “local law of the state where the injury occurred […] unless with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 […].” Diligence Requirements Through the Supply chain, Final Report”, prepared for the European Commission, available at https://www.business-humanrights.org/sites/default/files/documents/DS0120017ENN.en_.pdf. 164 Lehmann/Eichel, RabelsZ 2019, 77 (107 et seq.). 165 Cf Hay/Borchers/Symeonides/Whytock, Conflict of Laws, § 12.15. 166 Cf the summary by Hay/Borchers/Symeonides/Whytock, Conflict of Laws, § 17, pp. 711–997. 167 E.g. the complaint in the lawsuit currently brought by Rhode Island against about 60 fossil fuel companies, including some foreign-based ones such as British Petroleum and Royal Dutch Shell, is a 150page document that only briefly mentions jurisdiction, and does not mention choice of law. The most recent annual survey of choice-of-law cases in the American courts by Symeonides, “Choice of Law in the American Courts in 2019 – Thirty-Third Annual Survey”, American Journal of Comparative Law 2020, (in print), does not mention any instance of climate change-related litigation. 168 Hay/Borchers/Symeonides/Whytock, Conflict of Laws, § 17.2. 169 For an overview of which states still follow the traditional rule, which adhere to the 2nd Restatement and which have adopted a combined approach, cf Symeonides (fn. 167) Table sub III. A.

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Recent cases on environmental liability follow § 146 and apply the law of the state where 61 the injury occurred rather than the one where the harmful event took place.170 Section 147 of the 2nd Restatement suggests a parallel rule for injuries to tangibles: “In an action for an injury to land or other tangible thing, the local law of the state where the injury occurred determines the rights and liabilities of the parties with respect to the particular issue, unless some other state has a more significant relationship under the principles stated in § 6 […].” Moreover, climate change litigation will probably aim at punitive damages. Pursuant to the draft 3rd Restatement, they may be awarded according to a state’s law(s) if all three or any two of the following are located in the state in question: the place of conduct, the place of the defendant’s domicile and the place of injury.171 170 In re Derailment Cases, and Reid v. Doe Run Resources Crp., cited according to American Law Institute, Restatement of the Law Second, Conflict of Laws 2d, Appendix, Court Citations July 2004 through June 2015, p. 355 and 361 et seq. 171 Hay/Borchers/Symeonides/Whytock, Conflict of Laws, 6th ed. 2018, § 17.50.

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PART 3 STATE LIABILITY UNDER INTERNATIONAL AND EUROPEAN LAW G. Environmental liability in international law Bibliography: Beyerlin/Marauhn, International Environmental Law, Hart Publishing/Verlag C.H.Beck, 2011, p. 39‐41; Brunnée, Sic Utere Tuo ut Alienum non Laedas, in: MPEPIL, Oxford, 2012, vol. IX, p. 188‐ 192; Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries, Cambridge University Press, 2002, at p. 91 et seq., 201‐204; Douhan, Liability for Environmental Damage, MPEPIL vol.VI, (2012), p. 830; Handl, Territorial Sovereignty and the Problem of Transnational Pollution, AJIL 69 (1975), p. 50‐76; Langenfeld/Minnerop, Environmental Liability Provisions in International Law, in: Wolfrum/Langenfeld/Minnerop (eds.), Environmental Liability in International Law: Towards a Coherent Conception, Erich Schmidt Verlag, 2005, p. 16, 26 et seq.; Larsson, The Law of Environmental Damage: Liability and Reparation, Kluwer, The Hague, 1999; Miller, Trail Smelter Arbitration, in: MPEPIL vol. IX (2012), p. 1010‐1013; Reid, Liability for Dangerous Activities: A Comparative Analysis, 48 ICLQ 731‐756 (1999); Shriver, Certain Phosphate Lands in Nauru case, MPEPIL, vol. 2 Oxford, 2012, p. 57‐61; Stoll, Transboundary Pollution, in: Morrison/Wolfrum (eds.), International, Regional and National Environmental Law, Kluwer, 2000, at p. 175 et seq.; Tanzi, Liability for Lawful Acts, MPEPIL, vol. VI, p. 837; Watts, International Law and the Antarctic Treaty System, Cambridge 1992, p. 209 et seq.; Wolfrum, The Convention on the Regulation of Antarctic Mineral Resource Activities, Berlin, 1991; Xue, Transboundary Damage in International Law, Cambridge University Press, 2003.

Contents I. Introduction ..................................................................................................... II. Notion – environmental liability – what does it mean and what is the purpose in the context of a liability regime? ..................................... III. Development of a regime on environmental liability: From liability for transboundary harm to genuine international environmental liability ............................................................................................................... 1. Introduction – first jurisprudence .......................................................... 2. Development of the treaty law on civil liability .................................. 3. International treaties on the protection of the environment of international common spaces: A paradigmatic shift? ........................ 4. Customary international law: Does there exist an international regime on environmental liability?......................................................... IV. Concluding observations: Necessary features in a regime on international environmental liability .......................................................... 1. Introduction................................................................................................. 2. Liability for lawful or only illegal activities .......................................... 3. Intensity of harm ........................................................................................ 4. Liability for not establishing precautionary measures or an adequate response system......................................................................... 5. The matter of causality.............................................................................. 6. Fault based or strict liability .................................................................... 7. Calculating the amount of compensation to be paid and limits ..... 8. The potential claimant ..............................................................................

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I. Introduction Recently a farmer from Peru claimed compensation from RWE for damage to his agricultural activities in Peru caused by climate change. Different from the judgment of the first instance court, the Court of Appeal of Hamm decided that the claim was admissible and started to enquire whether causality existed between the activities of RWE and the damages claimed.1 In a different case and before a different national court, German farmers, with the assistance of Greenpeace, claimed compensation from the German government arguing that Germany had failed in effectively fighting the reasons for climate change. The claim was dismissed for the lack of the right to sue (Klagebefugnis).2 These two cases selected at random, and although originating at the national level, illustrate some of the problems faced in the attempts to develop an international regime concerning environmental liability. 2 Considering international law rules concerning environmental liability account has to be taken of the fact that in many cases environmental harm has its origin in activities of private actors. Therefore, traditionally a distinction is being made between civil liability and State liability regimes. There seems to be a preference of States for civil liability regimes, which in principle, do not include States as debtors. However, this distinction has been blurred recently as will be demonstrated by reference to liability in respect of environmental damage in Antarctica and deep seabed mining.3 3 Although an international regime concerning the responsibility of States exists based, at least in part, or reflecting customary international law4 international law, so far, has not been able to design a general international regime on environmental liability. The International Law Commission made such an attempt. Its deliberations commenced already in 1978 on scope and nature of international law for injurious consequences arising out of acts not prohibited by international law. Such deliberations were conducted in parallel to those on International Responsibility of States for Internationally Wrongful Acts.5 The ILC deliberations concerning injurious consequences not prohibited by international law finally resulted in 2001 in a set of Draft Articles on Prevention of Transboundary Harm from Hazardous Activities submitted to the UN General Assembly and the ILC recommended that the UN General Assembly initiate the elaboration of a convention based on these Draft Articles.6 In 2006, the ILC adopted ‘Draft Principles on the Allocation of Loss in the Case of Transboundary Harm Arising out of Hazardous Activities (Draft Principles)’.7 These Draft Principles are discussed controversially. 1

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Saùl Lliuya gegen RWE AG (Az. 5 U15/17). Administrative Court of Berlin Judgment of 31 October 2019 (10 K 412/18). Similar cases are pending before several courts in different countries. Most of them claim lack of activities on the side of the governments concerned others claim environmental liability for damages already incurred. Apart from national law, most of them invoke European as well as public international law. They all are attempts to influence the governmental policy via the judiciary. 3 On that see below at III.3. 4 ILC Articles on State Responsibility for Internationally Wrongful Acts, A/Res. 56/83 of 12 December 2001. 5 See fn. 4. 6 Report of the International Law Commission on the Work of its Fifty-Third Session, GAOR 56th Session Supplement 10, 370 at para. 94. The General Assembly expressed its appreciation on the work without taking a position about a possible future codification. 7 Report of the International Law Commission on the Work of its Fifty-Eighth Session, GAOR 61st session, Supplement 10, 106. In 2007 the General Assembly commended both documents the Draft Articles and the Draft Principles to the attention of the governments (A/RES 62/68 of 6 December 2007). 2

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Instead, international law treaty law, developed a sectoral approach resulting in regimes 4 on responsibility and liability such as for Outer Space, Antarctica (not yet fully in force) and damages from deep seabed mining (not yet fully operational) as well as civil liability regimes concerning damages resulting from – generally speaking – hazardous activities having a transboundary effect. Although each of these regimes reflects the one or other feature necessary for a regime on international environmental liability, these instruments are tailored to particular situations and may not easily serve as models. However, they have influenced each other. Any environmental liability regime whether a civil liability or State liability regime is 5 being based upon the Roman law principle sic utere tuo ut alienum non laedas (so-called no harm rule).8 The modern trend in respect of international environmental legal regimes considers environmental liability as the last option. The focus of these regimes is rather on prevention of environmental damage than on environmental liability. This is being guided by the consideration that environmental damages in most cases cannot be undone completely and that prevention may prove more cost effective than any remedial action. Taking into account the various attempts to establish an international regime on 6 environmental liability, it is mandatory to consider the potential object and purpose of such a regime. International regimes on environmental liability serve two not mutually exclusive purposes. It may have for objective to cover the costs for response action to environmental harm as well as the costs for damage inflicted through the environment to property or health. It may further have the objective to constitute a disincentive that persons, private entities or States do not externalize the costs of their activities. As such, and this constitutes the second aspect, such an object and purpose would render the regime concerned a mechanism to enforce international environmental standards.

II. Notion – environmental liability – what does it mean and what is the purpose in the context of a liability regime? The meaning of the term ‘environmental liability’ is being discussed controversially. 7 Two trends may be distinguished, one focusing on how the damage is being inflicted and the other, coming to a more narrow definition, focusing on whether the damage affects the environment or components thereof. In defining environmental liability, it is necessary, first, to achieve clarity of what is 8 meant by the term ‘environment’. The ILC in its Draft Principles9 follows a broad approach, which, however, does not enjoy universal recognition. It includes in the term ‘environment’ ‘natural resources, both abiotic and biotic, such as air, water, soil, fauna and flora and the interaction between the same factors. It also includes characteristic aspects of the landscape’.10 It is problematic whether to include also objects of archaeological or historical value.11 There is, due to the uncertainty concerning the definition of the term ‘international 9 liability’, no common understanding on the term ‘environmental damage’ either. The ILC defines environmental damage as: ‘(iii) loss or damage by impairment of the environment; (iv) the costs of reasonable measures of reinstatement of the property, or 8 See on that Brunnée, Sic Utere Tuo ut Alienum non Laedas, in: Max Planck Encyclopedia of Public International Law, Oxford, 2012, vol. IX, 188‐192. 9 See fn. 7 above. 10 Article 2(b) reads: (b) “environment” includes natural resources, both abiotic and biotic, such as air, water, soil, fauna and flora and the interaction between the same factors, and the characteristic aspects of the landscape (fn. 7 above). 11 Article 2 (a) (iii) Draft Principles (fn. 7 above).

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environment, including natural resources; (v) the costs of reasonable response measures.’12 This definition is comprehensive considering the context in which it is being formulated. This definition covers primarily loss or damage by impairment of the private goods but indirectly – by referring to the costs, which may be recovered – it also refers to damage to the environment as such. 10 This definition is convincing. It is not within the logic of modern international law to differentiate between damage to the environment as such (pure environmental damage) and damage to persons, property and expectations resulting from a damage to the environment.13 Both types of damages often go hand in hand although there is a clear trend in international law to establish a regime concerning responsibility and liability in respect of the environment as such. This may have for result that damage to persons, property and legal expectations become elements for quantifying damage rather than elements in defining environmental damage and liability respectively.

III. Development of a regime on environmental liability: From liability for transboundary harm to genuine international environmental liability 1. Introduction – first jurisprudence 11

Liability for environmental harm or degradations was first developed by jurisprudence in the context of transboundary situations. In this respect, reference is to be made to the Trail Smelter case.14 The case constituted a dispute between the USA and Canada concerning damages to private property in the USA resulting from the transboundary emissions of sulphur dioxide from a lead and zinc smelting plant in Canada. The arbitral tribunal developed two fundamental principles, which influenced the development of international environmental law. It established the principle sic utere tuo ut alienum non laedas15 and held Canada responsible for the damages already inflicted and for possible further negative transboundary effects. The ICJ in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons confirmed the no-harm principle at the same time expanding it. The Court stated: “The existence of the general obligation of States to ensure that actions within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.”16

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A further case of relevance is the Certain Phosphate Lands in Nauru case.17 In this case Nauru argued that Australia, as an administering power, had violated its basic 12

Principle 2 of the Draft Principles with Commentaries 127–28, para. 11 (fn. 7 above). Principle 2 (a) (ii) (see fn. 7 above) reads: loss of, or damage to, property, including property which forms part of the cultural heritage. 14 3 RIAA 1903 et seq. (1949); see on this case Miller, Trail Smelter Arbitration, in: MPEPIL vol. IX (2012), 1010‐1013; Handl, Territorial Sovereignty and the Problem of Transnational Pollution, AJIL 69 (1975), 50‐76; in general Beyerlin/Marauhn, International Environmental Law, Hart Publishing/C.H.Beck, 2011, 39‐41. 15 See above at fn. 8. 16 ICJ Reports 1996, 226, 241 et seq., para. 29. This statement was repeated in substance in the judgement of the ICJ in the case concerning Gabcikovo-Nagymaros Project (Hungary v. Slovakia), ICJ Reports 1997, 7, 41 at para. 53 in which it was emphasized that the protection of the environment was in the interest not only of individual States but also for the whole mankind. 17 Nauru v. Australia (1992), ICJ Reports 4 et seq. 13

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responsibilities by allowing extensive mining and export of phosphates, which had made parts of Nauru uninhabitable for environmental reasons. The case was settled amicably and Australia made payments to compensate for environmental damage.18 Of relevance, also for the future development of an international liability regime for environmental damages, are the decisions of the UN Compensation Commission, established in 1991, as a subsidiary organ of the UN Security Council to deal with the damages inflicted by Iraq on Kuwait.19 The Governing Council of the Commission specified various categories of environmental damage such as abatement and prevention of environmental damage, measures already taken to clean and restore the environment, reasonable measures to assess the damage to the environment and depletion of natural resources.

2. Development of the treaty law on civil liability International treaties which regulate liability for transboundary harm or in the 13 context of shared resources set forth liability for damage arising from particular types of hazardous activities such as oil pollution, including pollution from ships; carriage and disposal of hazardous wastes and substances; nuclear pollution; damages caused by industrial incidents and damage caused by living modified organisms. Some of the treaties mentioned above should be briefly considered with the view to 14 exemplify the relevant rules on environmental liability in civil liability treaties. As far as oil pollution at sea is concerned the existing treaty regime was influenced 15 by various incidents which resulted in significant damages to the marine environment as well as to private property. The damages were not only caused by the oil spills but also by the response actions undertaken. The regime established consists of the 1969 Convention on Civil Liability for Oil Pollution Damage, the 1971 Fund Convention, the 1992 Convention on Civil Liability for Oil Pollution Damage20 and the 1992 Fund Convention21 (amending the 1969/1971 treaties, which are becoming obsolete). This regime was updated by the 2003 Protocol to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage.22 The Civil Liability Convention (CLC) covers loss or damage caused outside the vessel by contamination resulting from the escape or discharge of oil. Compensation for the damage to the environment is limited to costs of reasonable measures for reinstatement, actually undertaken or to be undertaken. The 2003 Protocol establishes a further level of compensation. This regime provides for liability on two levels. The liability (strict liability) rests first with the owner of the vessel concerned and second, if the compensation from the owner of the vessel is insufficient, the 1992 Fund will supplement the compensation to be paid up to a maximum amount. The 1993 Protocol establishes a third tier of compensation by establishing a Supplementary Fund23 covering the costs, which surpass the amounts covered under the 1992 Convention on Civil Liability.

18 For a discussion of the case, see Shriver, Certain Phosphate Lands in Nauru case, MPEPIL, Oxford, 2012, 57‐61. 19 For details concerning the establishment of this Commission, see Beyerlin/Marauhn, (fn. 14), 365. 20 http://library.arcticportal.org/1617/1/Liability_Conv_1992.pdf; BGBl. (last visited 27 December 2019); BGBl. 1996 II, 671; 2002 II S. 943. 21 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damages, 1992, https://treaties.un.org./doc/Publication/UNTS/Volume%201110/volume1110/ 17146 English.pdf. (last visited 27 December 2019). 22 http://transportrecht.org/cop.content/uploads/Prot03Fonds92e.pdf. 23 International Oil Pollution Compensation Supplementary Fund, https://woww.jusuio.no/english services/library/treaties/06/604/imo_iopc_supplementary_fund.xml.

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It was, before the 1992 Protocol entered into force, a matter of dispute whether the regime concerning liability for oil pollution would cover damage to the environment as such, apart from damages to private property or injury of individuals. The Messina Appeal Court in a judgment of 24 December 1993 on damages caused by the Greek tanker Patmos decided positively.24 The 1992 Protocol, though, confines the definition of compensable damage to the reimbursement of appropriate reinstatement costs. The decisive question accordingly is how to define ‘appropriate reinstatement costs’. The Claims Manual, October 2013, of the International Oil Pollution Compensation Fund, 1992, states that ‘contributions may be made to costs of post-spill studies provided that they relate to damage which falls within the definition of pollution damage’. However, it further states that ‘compensation is not paid in respect of claims for environmental damage based on an abstract quantification calculated in accordance with theoretical models.’ The Manual finally excludes compensations of a punitive nature. 17 The 2001 International Convention on Civil Liability for Bunker Oil Damages25 follows the model of the 1992 Liability Convention covering oil spills from bunkers of vessels, rather from tankers to which the 1992 Convention on Civil Liability applies. 18 In addition to the international regime, concerning oil pollution there exists the 1996 International Convention on Liability and Compensation for Damage in connection with the Carriage of Hazardous and Noxious Substances.26 It follows largely the model of the 1992 Civil Liability Convention.27 19 As far as damages from the production of nuclear energy are concerned, a regime concerning civil liability has been developed by a set of international agreements. These are the 1960 Convention on Third Party Liability in the Field of Nuclear Energy (Paris Convention), 1960 as amended 2004,28 the 1963 Convention Supplementary to the Paris Convention (Brussels Convention), as amended 2004 and the Vienna Convention on Civil Liability for Nuclear Damage, revised in 1977, together with the 1997 Convention on Supplementary Compensation for Nuclear Damage29 and the 1988 Joint Protocol Relating to the Application of the Vienna Convention and the Paris Convention.30 The Paris Convention is a regional instrument and it provides for civil liability and compensation for damage caused by accidents occurring while producing nuclear energy. The liability rests – in form of strict but limited liability – with the operator of the nuclear installation concerned. The operator is obliged to get insurance. Compensation under this regime covers personal injury and damage to property, the measures to reinstate a damaged environment, the loss of income resulting from an impaired environment and the costs of preventive measures. The Brussels Convention provides additional funds, where the Paris funds prove to be insufficient. 16

24 See summary of the judgment in RECIEL 1995, 341‐342; see also Langenfeld/Minnerop, Environmental Liability Provisions in International Law, in: Wolfrum/Langenfeld/Minnerop (eds.), Environmental Liability in International Law: Towards a Coherent Conception, Erich Schmidt Verlag, 2005, 16. 25 http://www.imo.org/en/About/Conventions/ListOfConventions/Pages/International-Convention-onCivil-Liability-for-Bunker-Oil-Pollution-Damage-%28BUNKER%29.aspx (last visited 27 December 2019). 26 And its amendments: http://www.imo.org/en/OurWork/Legal/HNS/Documents/HNS%20Consolidated%20text.pdf (last visited 27 December 2019). 27 See more in detail Beyerlin/Marauhn (fn. 14), 369‐371. 28 https://www.oecd-nea.org/law/nlparis_conv.html (last visited 27 December 2019). 29 Vienna Convention on Civil Liability for Nuclear Damage, 1963 (which follows the model of the Paris Convention but it is open for all States; https://www.iaea.org/topics/nuclear-liability-conventions/ vienna-convention-on-civil-liability-for-nuclear-damage; Supplementary Convention, https://www.oecdnea.org/law/multilateral-agreements/liability-compensation.html (last visited 27 December 2019). 30 https://www.iaea.org/topics/nuclear-liability-conventions/joint-protocol-relating-to-application-ofvienna-convention-and-paris-convention.

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Concerning the transboundary movement of hazardous waste reference may be made 20 to the 1999 Protocol to the Basel Convention.31 It provides for liability and for adequate and prompt compensation for damage. The damage as defined includes loss of life or personal injury, loss or damage to property, loss of income resulting from an economic interest in the use of an impaired environment, and the costs of measures taken to prevent, minimize or mitigate damage or to effect an environmental clean-up.32 It is evident that this regime provides for environmental liability strictly speaking. The 1993 Convention on Liability for Damage Resulting from Activities Dangerous 21 to the Environment adopted by the Council of Europe33 establishes a liability regime on a regional basis. An operator is liable for incidents identified by the Convention. The liability is unlimited. The Convention protects the environment as well as private property, which forms part of the cultural heritage and characteristic aspects of the landscape. As far as modified genetic living resources are concerned, article 27 of the Cartagena 22 Protocol on Biosafety to the Convention on Biological Diversity34 mandates its Meeting of Parties (the Conference of Parties to the Biodiversity Convention) to adopt a process with respect to the appropriate elaboration of international rules and procedures in the field of liability and redress of damage resulting from transboundary movements of living modified organisms. This resulted in the Nagoya-Kuala Lumpur Supplementary Protocol on Liability and Redress to the Cartagena Protocol that entered into force 2018.35 Although the Supplementary Protocol follows the matrix of other civil liability treaties, it marks some important developments concerning environmental liability. The Supplementary Protocol provides a definition of damage referring to the adverse effect on the conservation and sustainable use of biological diversity that is measurable or otherwise observable and significant.36 A detailed list of indicatory is provided for to determine the significance of the effects. This may serve as a model in future instruments. The operator is obliged to take reasonable response action and if such response action is not taken, the competent authority may take such actions.37 The competent authority has the mandate to direct the response action taken by the operator or by another entity. Finally, the Supplementary Protocol refers to the responsibility and liability of States under international law.38 The liability of States under this Protocol has been increased since the State concerned has a far-reaching responsibility in respect of response actions to be taken. 31 Protocol on Liability and Compensation for Damage resulting from Transboundary Movements of Hazardous Waste and their Disposal, www.basel.int/countries/StatusofRatifications/TheProtocol/tabid/ 1345/Default.aspx (last visited 27 December 2019). 32 The relevant parts of article 2 read: (c) “Damage” means: (i) Loss of life or personal injury; (ii) Loss of or damage to property other than property held by the person liable in accordance with the present Protocol; (iii) Loss of income directly deriving from an economic interest in any use of the environment, incurred as a result of impairment of the environment, taking into account savings and costs; (iv) The costs of measures of reinstatement of the impaired environment, limited to the costs of measures actually taken or to be undertaken; and (v) The costs of preventive measures, including any loss or damage caused by such measures, to the extent that the damage arises out of or results from hazardous properties of the wastes involved in the transboundary movement and disposal of hazardous wastes and other wastes subject to the Convention; (d) “Measures of reinstatement” means any reasonable measures aiming to assess, reinstate or restore damaged or destroyed components of the environment. Domestic law may indicate who will be entitled to take such measures. 33 https://rm.coe.int/168007c079 (last visited 27 December 2019). 34 http://bch.cbd.int/protocol (last visited 27 December 2019). 35 http://bch.cbd.int/protocol/NKL_text.shtml (last visited 27 December 2019). 36 Article 2 (3). 37 Article 2 in connection with article 5. 38 Article 11.

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The regimes concerning civil liability although differing in details all follow a similar approach. They all provide for liability of the operator concerned, which means they all implement the polluter pays principle in general. However, this liability is limited in several respects. The incidents that give rise to liability are narrowly defined, so are the damages covered. The compensation owed is limited and supplemented by a fund. The fund consists mostly of contributions from operators engaged in the same activity. This system also reflects the polluter pays principle and may be qualified as an act of solidarity of those operators (Gemeinschaft der potentiellen Schädiger). Although these regimes on civil liability for the conduct of hazardous are positive in themselves their positive influence concerning a protection of the environment is limited. However, the way these regimes are established has had a positive influence on the implementation of the standards, which govern the conduct of the hazardous activities.

3. International treaties on the protection of the environment of international common spaces: A paradigmatic shift? Common spaces are those areas beyond national territorial jurisdiction such as Outer Space, Antarctica, the high seas, and the deep seabed and ocean floor (Area). For all these areas particular environmental regimes have been established, which have been, some more, some less, supplemented with a regime on environmental liability. 25 These regimes differ significantly from the civil liability regimes described so far. They have as a basis that all States are interested in the protection of the environment in these spaces and its use. Therefore, it was politically easier to find common ground for an environmental regime. However, as will be demonstrated this did not necessarily include a regime on environmental liability. 26 A forerunner of the regimes on common spaces were treaty-based regimes on commonly shared resources such as on international rivers. The regime applicable to the Rhine39 may serve as an example. The Rhine is governed by the 1999 Convention on the Protection of the Rhine, which replaces earlier treaties concerning the Rhine but not the 1976 Convention on the Protection of the Rhine against pollution by Chlorides and its Additional Protocols.40 These are typical agreements containing State obligations concerning preventive measures to be taken. They do not contain a specific regime on environmental liability. In this respect, recourse is necessary to State responsibility and liability for internationally wrongful acts. The same is true for the Danube.41 Neither the Convention on the Law of Non-navigational uses of International Watercourses, 1997,42 which is meant to serve as a model for treaty based regimes on international rivers, nor the Draft Convention concerning International Aquifers, 200843 provide for an international liability regime. Both, however, oblige States Parties not to significantly harm other States.44 The wording of the said provisions indicate that these two instruments do not provide for the protection of the environment as such but cover a wider spectrum of potential damages. The latter may, however, encompass any damage to the environment as well as a damage inflicted via a damage to the environment. Since a violation of the 24

39 Also in the context of shared resources, a judgment is to be mentioned, namely the Lac Lanoux case, 12 RIAA, 281 et seq. (1963). 40 https://www.internationalwaterlaw.org/documents/regionaldocs/rhine_river.html. 41 Danube River Protection Convention; https://www.icpdr.org/main/icpdr/danube-river-protectionconvention (last visited 27 December 2019). 42 UN Convention on the Law of Non-Navigational Uses of International Watercourses, 36 ILM, 700 (1997). 43 A/Res/63/124, Annex, 11 December 2008. 44 Articles 7 and 27 and article 6 respectively.

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Convention on international watercourses would constitute an internationally wrongful act, the general rules on international responsibility and liability are applicable. The Convention on International Liability for Damage Caused by Space Objects, 27 197245 establishes a legal regime concerning liability for States, not necessarily environmental liability, caused by space objects on Earth, including its airspace, or in Outer Space. The responsibility rests with the launching State (State which launched the space object concerned or from whose territory or installation the launching took place) (article II). Sufficient is a launching attempt. The launching State is ‘absolutely liable to pay compensation caused by its space object on the surface of the Earth’. Damage in outer space, such as on other space objects, is fault based. The Convention even gives an indication concerning the calculation of the damage. The article XII concerned reads: The compensation which the launching State shall be liable to pay for damage under this Convention shall be determined in accordance with international law and the principles of justice and equity, in order to provide such reparation in respect of the damage as will restore the person, natural or juridical, State or international organization on whose behalf the claim is presented to the condition which would have existed if the damage had not occurred. There is no direct reference to environmental damage but the wording is broad 28 enough to cover damage to the environment as well as damage inflicted through environmental damage. The regime on Antarctica was influenced by the regime governing Outer Space. The 29 legal situation in respect of Antarctica is a complex one. Most of Antarctica is claimed by States (Chile, Argentina, United Kingdom, Norway, France, Australia and New Zealand) whereas such claims for territorial sovereignty are objected to by other States. In spite of that an international agreement had been concluded, the Antarctic Treaty,46 which demilitarized Antarctica and concentrated on guaranteeing the freedom of scientific research on this continent. Over the years, the institutionally established cooperation among the States concerned focused more and more on the environmental protection of Antarctica, which was considered to constitute an ecosystem. After attempts had failed to establish a regime governing mineral resource activities in Antarctica47 a protocol concerning the protection of Antarctica (Environmental Protocol) was successfully concluded,48 which provided for the elaboration of a regime on environmental liability resulting from emergencies and from the conduct of activities in Antarctica.49 The negotiation process resulted in the adoption of Annex VI to the Environmental Protocol,50 which, however, covers only environmental emergencies. This Annex provides, which precautionary measures have to be taken by an operator. It further provides that in case of an environmental emergency the operator has to take 45

Convention on International Liability for Damage Caused by Space Objects, 1972, 961 UNTS, 181. Antarctic Treaty, 1959, 402 UNTS, 71. 47 Draft Convention on the Regulation of Mineral Resource Activities, 1988, 27 ILM, 865 (1988); on the Draft, see Wolfrum, The Convention on the Regulation of Antarctic Mineral Resource Activities, Berlin, 1991, Watts, International Law and the Antarctic Treaty System, Cambridge 1992, 209 et seq. 48 30 ILM, 146 (1991). 49 See articles 15 and 16 of the Antarctic Protocol; Article 16 of the Environmental Protocol reads: Consistent with the objectives of this Protocol for the comprehensive protection of the Antarctic and covered by this Protocol. Those rules and procedures shall be included in one or more Annexes to be adopted in environment and dependent and associated ecosystems, the Parties undertake to elaborate rules and procedures relating to liability for damage arising from activities taking place in the Antarctic Treaty area accordance with Article 9 (2). 50 Annex VI to the Environmental Protocol to the Antarctic Treaty (fn. above at 48). 46

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effective and prompt response action. If no such response action has been taken another State or even a private operator may take a response action if the negative impact on the Antarctic environment is significant and imminent.51 The liability of the operator is a strict one; exemptions are restricted.52 The operator concerned is obliged to pay to the State or entity which undertook the response action the costs for such response action. If no response action was undertaken the operator is liable to pay the costs for a response action which should have been undertaken. These payments are to be made to a fund, which has for objective to finance costs for response actions, which are not otherwise covered.53 The liability is limited.54 30 It is clearly established in this provision that the costs for the response action undertaken – or even the costs for a response action not having been undertaken – are determinative for the amount to be paid as compensation for environmental damage. The limitations provided for reflect the need to have the activities concerned insured. 51

See article 5 of Annex VI (fn. 48) above. See article 8 of Annex VI (fn. 48): 1. An operator shall not be liable pursuant to Article 6 if it proves that the environmental emergency was caused by: (a) an act or omission necessary to protect human life or safety; (b) an event constituting in the circumstances of Antarctica a natural disaster of an exceptional character, which could not have been reasonably foreseen, either generally or in the particular case, provided all reasonable preventative measures have been taken that are designed to reduce the risk of environmental emergencies and their potential adverse impact; (c) an act of terrorism; or (d) an act of belligerency against the activities of the operator. 2. A Party, or its agents or operators specifically authorised by it to take such action on its behalf, shall not be liable for an environmental emergency resulting from response action taken by it pursuant to Article 5(2) to the extent that such response action was reasonable in all the circumstances. 53 The relevant part of article 6 of Annex VI reads: 1. An operator that fails to take prompt and effective response action to environmental emergencies arising from its activities shall be liable to pay the costs of response action taken by Parties pursuant to Article 5(2) to such Parties. 2. (a) When a State operator should have taken prompt and effective response action but did not, and no response action was taken by any Party, the State operator shall be liable to pay the costs of the response action which should have been undertaken, into the fund referred to in Article 12. (b) When a non-State operator should have taken prompt and effective response action but did not, and no response action was taken by any Party, the non-State operator shall be liable to pay an amount of money that reflects as much as possible the costs of the response action that should have been taken. Such money is to be paid directly to the fund referred to in Article 12, to the Party of that operator or to the Party that enforces the mechanism referred to in Article 7(3). A Party receiving such money shall make best efforts to make a contribution to the fund referred to in Article 12 which at least equals the money received from the operator. 3. … 54 See article 9 of Annex VI unless the environmental emergency was brought about intentionally. Article 9 reads in its relevant part: 1. The maximum amount for which each operator may be liable under Article 6(1) or Article 6(2), in respect of each environmental emergency, shall be as follows: (a) for an environmental emergency arising from an event involving a ship: (i) one million SDR for a ship with a tonnage not exceeding 2,000 tons; (ii) for a ship with a tonnage in excess thereof, the following amount in addition to that referred to in (i) above: – for each ton from 2,001 to 30,000 tons, 400 SDR; – for each ton from 30,001 to 70,000 tons, 300 SDR; and – for each ton in excess of 70,000 tons, 200 SDR; (b) for an environmental emergency arising from an event which does not involve a ship, three million SDR. 2. (a) Notwithstanding paragraph 1(a) above, this Annex shall not affect: (i) the liability or right to limit liability under any applicable international limitation of liability treaty; or (ii) the application of a reservation made under any such treaty to exclude the application of the limits therein for certain claims; provided that the applicable limits are at least as high as the following: for a ship with a tonnage not exceeding 2,000 tons, one million SDR; and for a ship with a tonnage in excess thereof, in addition, for a ship with a tonnage between 2,001 and 30,000 tons, 400 SDR for each ton; for a ship with a tonnage from 30,001 to 70,000 tons, 300 SDR for each ton; and for each ton in excess of 70,000 tons, 200 SDR for each ton. (b) Nothing in subparagraph (a) above shall affect either the limits of liability set out in paragraph 1(a) above that apply to a Party as a State operator, or the rights and obligations of Parties that are not parties to any such treaty as mentioned above, or the application of Article 7(1) and Article 7(2). 3. Liability shall not be limited if it is proved that the environmental emergency resulted from an act or omission of the operator, committed with the intent to cause such emergency, or recklessly and with knowledge that such emergency would probably result. 4… 52

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So far, the Antarctic Treaty Consultative Parties have not developed a regime, although required by article 16 of the Madrid Protocol, providing for an environmental liability regime on damages caused by activities in Antarctica. Such a regime was discussed controversially in the negotiations leading to the adoption of Annex VI to the Environmental Protocol. It was objected to by the United States and China, in particular. Annex VI in this respect constitutes a compromise since it only refers to environmental emergencies. In spite of its limited scope the established regime on environmental emergencies already contains elements, which influenced the further development of international law on environmental liability. A comparative scheme on environmental liability is to be found in the Protocol on Civil Liability and Compensation for Damage Caused by Transboundary Effects of Industrial Accidents of Transboundary Waters to the 1992 Convention on the Protection and Use of Transboundary Watercourses and Lakes and to the 1992 Convention on the Transboundary Effects of Industrial Accidents (Kiev Protocol) (not yet in force).55 According to article 4 of this Protocol the liability is a strict one, with exemptions. The liability is limited as provided for in Part one of Annex II to the Protocol. Article 12 of the Protocol refers to State liability according to international law. The Kiev Protocol does not provide for a comprehensive system on environmental liability since it only cover the effects of accidents. The ensuing liability is oriented to cover damage to private property and individual harm. However, the scope of the damage to be covered is wide enough to encompass environmental damage. The most advanced environmental liability regime has been developed in the context of the law of the sea. It consists of two different tracks. A general provision on environmental responsibility and liability is contained in article 235 of the UN Convention on the Law of the Sea (UNCLOS). Paragraph 1 of this provision reiterates the responsibility of States (not only of States Parties) concerning the protection and preservation of the marine environment. It has to be read in conjunction with article 192 UNCLOS. According to its paragraph 2 all States are under an obligation to “…ensure that recourse is available … for prompt and adequate compensation or other relief in respect of damage caused by pollution of the marine environment by natural or juridical persons under their jurisdiction.” This covers the aspect of civil liability and damages inflicted by an impairment of the environment but not pure environmental damages. Paragraph 3 finally deals with the inter-State aspect of damage to the marine environment. However, as it is typical for UNCLOS, this provision does not develop a regime for responsibility and liability but refers to the development of the relevant international law.56 An elaborate regime concerning environmental liability has been established by article 139 UNCLOS in connection with article 4 Annex III to UNCLOS57 as well as the 55

www.unece.org/fileadmin/DAM/env/civil-liability/documents/protocol_e.pdf. Article 235 (3) reads: With the objective of assuring prompt and adequate compensation in respect of all damage caused by pollution of the marine environment, States shall cooperate in the implementation of existing international law and the further development of international law relating to responsibility and liability for the assessment of and compensation for damage and the settlement of related disputes, as well as, where appropriate, development of criteria and procedures for payment of adequate compensation, such as compulsory insurance or compensation funds. 57 Responsibility to ensure compliance and liability for damage 1. States Parties shall have the responsibility to ensure that activities in the Area, whether carried out by States Parties, or state enterprises or natural or juridical persons which possess the nationality of States Parties or are effectively controlled by them or their nationals, shall be carried out in conformity with this Part. The same responsibility applies to international organizations for activities in the Area carried out by such organizations. 2. Without prejudice to the rules of international law and Annex III, article 22, damage caused by the failure of a State Party or international organization to carry out its responsibilities under 56

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Draft Regulation of the International Seabed Authority on Exploitation of Mineral Resources in the Area (not yet finalized).58 Liability arising from damages caused by operators engaged in mineral resource activities rests with the respective operators. These may be States, State owned entities or natural or juridical persons. As far as private operators are concerned this regime is to be qualified as a civil liability regime and it is applied as such to States or State owned operators. However, article 139 (2) UNCLOS establishes in connection with article 4 (4) Annex III to UNCLOS a State liability for actions (or omissions) by private operators which have been sponsored by that State.59 36 It is necessary to establish the background of this provision and what it does constitute or rather not constitute. When the deep seabed-mining regime was established it was controversial whether private entities as well as natural persons could engage in deep seabed mining. This was finally accepted. When it came to the question of responsibility and liability, States, which did not accept the market system, that responsibility and liability of private actors under international law was not sufficient but that States should accept some responsibility in respect of private entities. It was equally emphasized, that any State responsibility should not deviate from the general principle under international law that a State is not responsible for private acts (or omissions) unless these are attributable to him. This resulted in establishing a parallel responsibility of States for private entities it has sponsored (Sponsoring State).60 This regime will be confirmed by the Regulation of the International Seabed Authority.61

4. Customary international law: Does there exist an international regime on environmental liability? Considering the fragmented references in treaty law and in particular the lack of common understanding as to whether damage to the environment as such is to be covered by a regime on environmental liability it seems to be premature to argue that such regime constitutes an emerging customary law.62 38 However, some basic elements of such a regime are firmly established in customary international law. It is uncontested that every State has the sovereignty to use its territory in accordance with its economic and environmental principles. It is equally uncontested that no State has the right to infringe the environment of other States significantly, in particular the one of neighbouring States (no harm principle). The basis for this rests in the principle that potential conflicts of sovereign rights have to be mutually accommodated. The principle formulated on that basis is that no State is obliged to tolerate 37

this Part shall entail liability; States Parties or international organizations acting together shall bear joint and several liability. A State Party shall not however be liable for damage caused by any failure to comply with this Part by a person whom it has sponsored under article 153, paragraph 2(b), if the State Party has taken all necessary and appropriate measures to secure effective compliance under article 153, paragraph 4, and Annex III, article 4, paragraph 4. 3. States Parties that are members of international organizations shall take appropriate measures to ensure the implementation of this article with respect to such organizations. 58 ISBA/25/WP.1. 59 Article 4 (4) reads: The sponsoring State or States shall, pursuant to article 139, have the responsibility to ensure, within their legal systems, that a contractor so sponsored shall carry out activities in the Area in conformity with the terms of its contract and its obligations under this Convention. A sponsoring State shall not, however, be liable for damage caused by any failure of a contractor sponsored by it to comply with its obligations if that State Party has adopted laws and regulations and taken administrative measures, which are, within the framework of its legal system, reasonably appropriate for securing compliance by persons under its jurisdiction. 60 Advisory Opinion of the International Seabed Chamber of ITLOS. 61 Fn. 58 above. 62 Different Douhan, Liability for Environmental Damage, MPEPIL vol.VI, (2012), 830, at 835.

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infringements of its environment that the emitting State would not accept itself.63 Several international courts and tribunals such as in the Trail Smelter Arbitration have ascertained this principle.64 Principles 21 and 22 of the Stockholm Declaration on the Human Environment, 1972 and the Principles 2 and 13 of the Rio Declaration on Environment and Development, 1992, expressly proclaim the responsibility of all States ‘to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction’. They call upon States to develop further the international and national law regarding liability and compensation for the victims of pollution and other environmental damage beyond their jurisdiction, caused by activities within the jurisdiction or control of such States. In particular, these two declarations indicate clearly that a regime on environmental liability is still to be developed although some elements thereof are already confirmed. This assessment is confirmed by the activities undertaken by the ILC. The UN 39 General Assembly commended upon the work done by the ILC without prejudice to any further action. In particular the approach chosen by the ILC to refrain themselves to formulate principles rather than articles and to limit itself to transboundary effects is a clear indication that an overarching international regime concerning environmental liability has not been established yet in international customary law.

IV. Concluding observations: Necessary features of a regime on international environmental liability 1. Introduction The features addressed below are contained in several of the international treaties – 40 including drafts – and they are considered essential for a truly comprehensive international regime concerning environmental liability. Only few of the international treaties dealt with address all of them.

2. Liability for lawful or only illegal activities Civil liability treaties and the ILC drafts regulate liability for transboundary damage 41 caused in the course of a lawful activity, involving the risk of causing significant harm.65 This differs from the general international regime concerning responsibility of States for internationally wrongful acts.66 In that respect, a difference between civil liability regimes and State liability regimes seems to exist. This is not the case. All civil liability regimes either cover transboundary situations, which means there is a negative impact on the environment of a neighbouring State. The fact of a significant transboundary effect already constitutes an infringement in the sovereignty of the neighbouring State. Although the activity was legal the negative impact upon the environment of a neighbouring country is illegal. That means that civil liability responsibility reflects illegality of effect whereas State liability reflects illegality of action. 63 Stoll, Transboundary Pollution, in: Morrison/Wolfrum (eds.), International, Regional and National Environmental Law, Kluwer, 2000, at 175 et seq. 64 See fn. above as well as the literature. 65 Principle 2 (c) Draft Principles (fn. 7); Article. 1 Draft Articles (fn. 6); see Tanzi, Liability for Lawful Acts, MPEPIL, vol. VI, 837; Reid, Liability for Dangerous Activities: A Comparative Analysis, 48 ICLQ 731‐756 (1999); Larsson, The Law of Environmental Damage: Liability and Reparation, Kluwer, The Hague, 1999; Xue, Transboundary Damage in International Law, Cambridge University Press, 2003; Langenfeld/Minnerop (fn. 24), 26 et seq. 66 See fn. 4 above.

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As far as illegal activities in respect of civil liability cases are concerned it is reasonable to apply the principle a majore ad minus; if already legal activities may result in liability this would be even more the consequence as far as illegal activities are concerned. However, in practice additional issues will have to be dealt with in this respect. If an illegal activity causes transboundary harm, the question will be whether the State from whom the emission occurred had violated its obligation to ensure that its territory is not being used to the detriment of a neighbouring State. The Kiev Protocol67 may be interpreted to point into the direction that an obligation exists for a State to ensure that activities on its territory do not cause significant harm to a neighbouring country. Such responsibility can only be one of conduct. The State concerned will owe due diligence in this respect. 43 The first threshold for civil liability in respect of transboundary harm is that the activity concerned was hazardous when it was carried out. Additionally, the respective operator was aware or ought to have been aware of the risk. Whether an activity is hazardous depends on several environmental and other factors; some of them may be apparent, such as the environmental situation in the area where the activity is planned to take place, others may become apparent only in the course of the activity concerned. For example, establishing a chemical plant in an area where frequent earthquakes occur is more risky than establishing it in a different region. Because of that and because of the rapid development of science and technology, the ILC attached no list of potentially hazardous activities to its Drafts. States, however, may freely agree on the list of activities viewed by them as hazardous for the purposes of a specific treaty or they may agree on a list on hazardous substances.68 It is to be noted that such or similar definitions limit the applicability of the respective liability regime whereas the reference to hazardous activities, without specification, provides for considerable discretion in the application of the said regime. 42

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See fn. 55. See for example article 1 (a) and (b) Convention on the Transboundary Effects of Industrial Accidents (fn. 55) defining accidents and activities. See also the elaborate definition of hazardous substances in the International Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (HNS Convention, consolidated text, www.imo.org/en/OurWork/Legal/HNS/Documents//HNS%20Consolidated%20text.pdf (last visited 31 December 2019)); article 5 of this Convention reads: any substances, materials and articles carried on board a ship as cargo, referred to in (i) to (vii) below: (i) oils, carried in bulk, as defined in regulation 1 of Annex I to the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto, as amended; (ii) noxious liquid substances, carried in bulk, as defined in regulation 1.10 of Annex II to the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto, as amended, and those substances and mixtures provisionally categorized as falling in pollution category X, Y or Z in accordance with regulation 6.3 of the said Annex II; dangerous liquid substances carried in bulk listed in chapter 17 of the International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk, as amended, and the dangerous products for which the preliminary suitable conditions for the carriage have been prescribed by the Administration and port administrations involved in accordance with paragraph 1.1.6 of the Code; (iv) dangerous, hazardous and harmful substances, materials and articles in packaged form covered by the International Maritime Dangerous Goods Code, as amended; (v) liquefied gases as listed in chapter 19 of the International Code for the Construction and Equipment of Ships Carrying Liquefied Gases in Bulk, as amended, and the products for which preliminary suitable conditions for the carriage have been prescribed by the Administration and port administrations involved in accordance with paragraph 1.1.6 of the Code; (vi) liquid substances carried in bulk with a flashpoint not exceeding 60°C (measured by a closed-cup test); solid bulk materials possessing chemical hazards covered by the International Maritime Solid Bulk Cargoes Code, as amended, to the extent that these substances are also subject to the provisions of the International Maritime Dangerous Goods Code in effect in 1996, when carried in packaged form; and (b) residues from the previous carriage in bulk of substances referred to in (a)(i) to (iii) and (v) to (vii) above. 68

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It is to be noted that a damage does not automatically indicate that the activity in 44 question was hazardous. Environmental impact inquiries are the established mechanism for an adequate risk assessment. An operator not having undertaken such risk assessment cannot claim to have been ignorant of the risk.

3. Intensity of harm As indicated above environmental damage must acquire a certain threshold to trigger 45 the applicability of an environmental liability regime. Various terms are being used in the relevant international treaties such as ‘serious’, ‘severe’, ‘significant’, ‘substantial’, ‘widespread’, ‘long-lasting’, ‘long term’. Influences below this threshold have to be tolerated. Article 2 of the ILC Draft Articles refers to significant harm.69 This results from the fact that States are interdependent and have to accept some trans-boundary effects. The Commentaries of the ILC on this particular provision are enlightening. They reflect the dominant approach in international law as to what should be covered by a regime on transboundary harm and the means how to establish the relevant risk and harm.70 To invoke the liability the damage has to be established by clear and convincing 46 evidence measured by factual and objective criteria and must have a real detrimental effect on human health, life, industry, property, environment, forestry, or agriculture of/ in another State. Harm which may be caused by State policies in monetary, political, or social spheres, is not eligible for compensation.71

4. Liability for not establishing precautionary measures or an adequate response system One of the controversial questions concerning civil liability for environmental 47 damage is whether and when States face international responsibility and eventually 69 Fn. 6 above: Article 2 reads: “Risk of causing significant transboundary harm” includes risks taking the form of a high probability of causing significant transboundary harm and a low probability of causing disastrous transboundary harm (Draft Articles with Commentaries at 152). 70 Subparagraph (a) defines the concept of “risk of causing significant transboundary harm” as encompassing a low probability of causing disastrous transboundary harm or a high probability of causing significant transboundary harm. The Commission feels that instead of defining separately the concept of “risk” and then “harm”, it is more appropriate to define the expression of “risk of causing significant transboundary harm” because of the interrelationship between “risk” and “harm” and the relationship between them and the adjective “significant”. (2) For the purposes of these articles, “risk of causing significant transboundary harm” refers to the combined effect of the probability of occurrence of an accident and the magnitude of its injurious impact. It is, therefore, the combined effect of “risk” and “harm” which sets the threshold. In this respect inspiration is drawn from the Code of Conduct on Accidental Pollution of Transboundary Inland Waters, 871 adopted by ECE in 1990. Under section I, subparagraph (f), of the Code of Conduct, “‘risk’ means the combined effect of the probability of occurrence of an undesirable event and its magnitude”. A definition based on the combined effect of “risk” and “harm” is more appropriate for these articles, and the combined effect should reach a level that is deemed significant. The obligations of prevention imposed on States are thus not only reasonable but also sufficiently limited so as not to impose such obligations in respect of virtually any activity. The purpose is to strike a balance between the interests of the States concerned. … (4)The term “significant” is not without ambiguity and a determination has to be made in each specific case. It involves more factual considerations than legal determination. It is to be understood that “significant” is something more than “detectable” but need not be at the level of “serious” or “substantial”. The harm must lead to a real detrimental effect on matters such as, for example, human health, industry, property, environment or agriculture in other States. Such detrimental effects must be susceptible of being measured by factual and objective standards. (5) The ecological unity of the planet does not correspond to political boundaries. In carrying out lawful activities within their own territories, States have impacts on each other. These mutual impacts, so long as they have not reached the level of “significant”, are considered tolerable. 71 Draft Articles with Commentaries 151 para. 16; Draft Principles with Commentaries 134 para. 24.

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liability for acts undertaken by natural or legal persons. As a matter of principle, States do not face international responsibility and liability for actions of private actors. Such acts are, in general, not attributable to States. Chapter II of the Articles of Responsibility of States for Internationally Wrongful Acts72 deals with this issue intensively and sets out several instances where a State may be responsible for acts of private actors. This is, however, not of relevance in this context. What is of relevance is that a State may have an obligation to monitor and control activities undertaken on its territory or under its jurisdiction. Such an international obligation must, however, be provided for in the primary rules of international law. Regimes, which establish such a connection between private actions, not attributable to a State, and an obligation of States, have been established for Antarctica and deep seabed mining under UNCLOS.

5. The matter of causality 48

It is well established for civil liability regimes as well as State liability regimes that the causality between the critical act or omission and the damage for which compensation is being sought is being established. This is clearly being expressed in article 31 (1) ILC Articles on State responsibility.73

6. Fault based or strict liability Liability treaties regulate liability of an operator of hazardous activities and set forth that his/her liability for any damage caused in the course of activity not prohibited by international law is strict/absolute/non-fault. The ILC clearly stated in the Draft Principles that liability of an operator ‘should not require the proof of fault’ (Principle 4 (2)). 50 An operator may only be exempted from liability when damage has been caused in an extraordinary situation out of his control: natural disasters; acts of war; and more recently acts of terror.74 These exemptions may only be applied when an operator proves that he took all necessary measures to prevent or minimize any transboundary impact. 51 Different scenarios result in differentiated liability regimes. It is clearly established that an operator is held strictly liable as a result of its exercise of hazardous activities. No explicit regime exists for non-hazardous activities. When damage arises from nonhazardous activities, e.g. research programs, tourism, etc., an operator could be liable on the basis of national law if it failed to take all appropriate means to prevent or minimize transboundary damage. The damage incurred induces the liability. If, however, an operator failed to take these measures in the course of a hazardous activity, the civil liability regimes provide that limitations of liability will not be applicable.75 52 As noted above, liability conventions and the drafts developed by the ILC provide for the responsibility of States ‘to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States and areas beyond their jurisdiction’. A State on the territory of which, or under the control of which, hazardous activities take place, may be liable for its failure to fulfil its international obligations. That would be the case if the State in question has not taken all necessary and appropriate measures to prevent significant harm or, at any event, to minimize the risk thereof through establish49

72 Fn. 4 above; see also Crawford, The International Law Commission’s Articles on State Responsibility: Introduction, Text and Commentaries, Cambridge University Press, 2002, at 91 et seq. 73 See fn. 4 above and Crawford (fn. 72), at 201‐204. Mostly the terms ‘causality’ or ‘causal link’ are being qualified. Qualifications are amongst others ‘directness’, ‘proximity’ or ‘foreseeability’ 74 Douhan (fn. 62), at p. 835. See in particular article 8 Annex VI to the Environmental Protocol to the Antarctic Treaty (fn. 49) and article 4 of the Kiev Protocol (fn. 55). 75 Douhan (fn. 62), at 834.

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ing necessary monitoring mechanisms, prior authorization of hazardous activity, cooperation with other States, assessment of risks, notification, information. Dogmatically the State concerned is, in such cases, liable for its own failure not for the failure of a private operator. As a logical consequence thereof, a State is not liable for damage, if it has taken all necessary and appropriate measures to secure effective compliance with the corresponding treaty.76 As stated in the Advisory Opinion of the Seabed Disputes Chamber of ITLOS the obligation ‘to take all necessary and appropriate measures’ is an obligation ‘to deploy adequate means, to exercise best possible efforts, to do the utmost’ to obtain the result. It is an obligation ‘of conduct’ but not ‘of result’. If damage is caused, the operator concerned carries primary liability. The extent of 53 State liability should be proportionate to the gravity of its failure to ensure that activities of private persons under its jurisdiction or control are carried out in conformity with the rules of a corresponding international treaty and the existence of a causal link between this failure and the damage caused.

7. Calculating the amount of compensation to be paid and limits The general trend is clearly that environmental damage is quantified by the costs of 54 response action whether undertaken or to be undertaken. It is equally evident that international law does not foresee punitive damages. To allow for the possibility of insurance, liability is limited to a fixed amount. This makes it necessary to provide for additional sources to cover the costs not covered by the operator concerned. The common approach in this respect is the establishment of a fund, mostly funded by the operators, which are engaged in the activity concerned (such as the transport of hydrocarbons). In some cases, supplementary funds are being established. Annex VI of the Environmental Protocol to the Antarctic Treaty follows that model so do the Draft Regulations on the Exploitation of Mineral Resources of the Seabed.

8. The potential claimant Liability treaties often do not regulate explicitly who can apply for compensation for 55 environmental damage. Nevertheless, because of the very nature of the harm only the natural or legal persons whose rights have been violated may usually make claims. Violations of States’ rights may only be raised by the State concerned. An exception exists, though. Under article 48 of the ILC Articles on State Responsibility,77 claims may be brought, under particular conditions, by other interested States. This constitutes a step towards an actio popularis. The third States may not invoke, though, liability. The development of an international regime on environmental liability is still in the 56 process of development; various international treaties concerning civil liability or State liability have developed several features, so far. Only the liability system established by article 139 UNCLOS in connection with article 4 (4) Annex III to UNCLOS, although not yet completed, may be considered as a comprehensive regime. It is clearly formulated as a means to enforce the rules and standards established by the International Seabed Authority. However, it is evident that environmental liability is nothing but the ultimate mechanism to avoid damages to the environment or damages induced via environmental damages. The focus of this regime is rather on avoidance of risks and environmental damage. 76 See article 139 UNCLOS in connection with article 4(4) Annex III to UNCLOS as well as Annex VI to the Environmental Protocol to the Antarctic Treaty. 77 See fn. 4.

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H. The international law and policy implications of climate change litigation: sustainable developments in international investment law and policy related to renewable energy, climate change mitigation and adaptation* Bibliography: Adler, U.S. Climate Change Litigation in the Age of Trump: Year One, Sabin Center for Climate Change Law, 2018, http://columbiaclimatelaw.com/files/2018/02/Adler-2018-02-U.S.-ClimateChange-Litigation-in-the-Age-of-Trump-Year-One.pdf.; Allen and Others, Climate Change and Capital Markets, The Steyer-Taylor Center for Energy Policy and Finance, 2015, https://law.stanford.edu/wpcontent/uploads/2015/07/Climate-Change-and-Capital-Markets-FINAL-05-13-2015.pdf.; Ansar/Caldecott/ Tilbury, Stranded assets and the fossil fuel divestment campaign: what does divestment mean for the valuation of fossil fuel assets?, October 2013, https://ora.ox.ac.uk/objects/uuid:f04181bc-8c4f-4cc1-8f01cafce57975ae/download_file?file_format=pdf&safe_filename=2013.10.08_SA_in_FF_Div_Campaign.pdf&type_of_work=Report; Ashukem, Setting the Scene for Climate Change Litigation in South Africa, Law, Environment and Development Journal 35, 2017; Banda/Fulton, Litigating Climate Change in National Courts: Recent Trends and Developments in Global Climate Law, Environmental Law Reporter – News & Analysis, 2017; Barker, Climate change and the fiduciary duties of pension fund trustees – lessons from the Australian law, Journal of Sustainable Finance and Investment, 2016; Barker/Winter, Temperatures rise in the boardroom: climate litigation in the commercial arena, Australian Environment Review, 2017; Centre for Climate and Energy Solutions, Outcomes of the U.N. Climate Change Conference in Bonn, November 2017, https://www.c2es.org/site/assets/uploads/2017/11/outcomes-of-the-u-n-climate-change-conference-in-bonn. pdf; CERES, Governments Urged to Maintain Momentum on Climate Action, Briefing Paper submitted to G7 and G20, July 2017, https://www.ceres.org/sites/default/files/Briefing-Paper-for-G20.pdf; Client Earth, World-first climate risk case launched over major coal plant in Poland, 2018, https://www.clientearth.org/ world-first-climate-risk-case-launched-over-major-coal-plant-in-poland; Climate Law and Governance Initiative, CLGD 2019 Proceedings Report, 2019, http://www.climatelawgovernance.org/wp-content/uploads/ 2020/02/CLGD-2019-Proceedings-Report.pdf; Cook, Interview with Miles/Welsh, Arbitration and climate change, The Law of Nations (Podcast), November 2017; Cordonier Segger, Advancing the Paris Agreement on Climate Change for Sustainable Development, Cambridge International Law Journal 5(2), p. 202 et seq; Cordonier Segger, Athena’s Treaties: Crafting Trade and Investment Agreements for Sustainable Development, Oxford University Press, 2020; Cordonier Segger, Climate Change and Sustainable Energy Measures in Regional Trade Agreements (RTAs): An Overview, International Centre for Trade and Sustainable Development, Issue Paper No 3, 2013, https://www.ictsd.org/sites/default/files/downloads/2013/08/climatechange-and-sustainable-energy-measures-in-regional-trade-agreements-rtas.pdf; Cordonier Segger, Inspiration for Integration: Interpreting International Trade and Investment Accords for Sustainable Development, Canadian Journal of Comparative and Contemporary Law 3(1), p. 159 et seq.; Cordonier Segger/Gehring/ Newcombe (eds.), Sustainable Development in World Investment Law, Kluwer Law International, 2012; Cordonier Segger/Weeramantry, Sustainable Development Principles in the Decisions of International Courts and Tribunals, Routledge, 2017, https://doi-org.ezp.lib.cam.ac.uk/10.4324/9781315769639; Dupuy/Viñuales, Harnessing Foreign Investment to Promote Environmental Protection: Incentives and Safeguards, Cambridge University Press, 2013; Elgar, Encyclopedia of Environmental Law, Edward Elgar Publishing Limited, 2016; European Commission, Final report of the High-Level Expert Group on Sustainable Finance, 31 January 2018, https://ec.europa.eu/info/publications/180131-sustainable-finance-report_en; Fisher, Climate Change Litigation, Obsession and Expertise: Reflecting on the Scholarly Response to Massachusetts v. EPA, Law and Policy, 2013; Freestone/Streck, Legal Aspects of Carbon Trading: Kyoto, Copenhagen and Beyond, Oxford University Press, 2009; Gehring/Stephenson/Cordonier Segger, Sustainability Impact Assessments as Inputs and as Interpretative Aids in International Investment Law, Journal of World Investment and Trade 17, * Sincere thanks and recognition are due to Sean Stephenson, Centre for International Sustainable Development Law (CISDL) Research Fellow, for his excellent legal research, substantive insights, and significant contributions to drafting this piece. Thanks and acknowledgements are also due to Natalia Kubesch LLB (KCL), LLM (Cand), University Cambridge and to Sakshi BA, LLB (Hons), BCL (Oxon), MPhil in Environmental Policy (Cand), University of Cambridge, CISDL Researchers, for their excellent legal research and insights on current trends in climate litigation and in the interpretation of the Paris Agreement on climate change.

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The international law and policy implications of climate change litigation p. 155 et seq.; Grantham Research Institute on Climate Change and the Environment, Policy Brief: Global Trends in Climate Change Legislation and Litigation 2017, March 2017; Green Finance Institute, Green Finance and Financing Green, 2019, http://greenfinanceinitiative.org/workstreams/green-finance-taskforce/; Huang, Why transparency makes the Paris Agreement a good deal, Centre for Climate and Energy Solutions, July 2017, https://www.c2es.org/2017/07/why-transparency-makes-the-paris-agreement-a-gooddeal/; ICAO, Carbon Offsetting and Reduction Scheme for International Aviation, https://www.icao.int/ environmental-protection/Pages/market-based-measures.aspx; International Finance Corporation, Climate Change Scenarios – Implications for Strategic Asset Allocation, Mercer, 2011, https://www.ifc.org/wps/wcm/ connect/6b85a6804885569fba64fa6a6515bb18/ClimateChangeSurvey_Report.pdf?MOD=AJPERES; IRENA, Renewable capacity highlights, March 2018, http://sun-connect-news.org/fileadmin/DATEIEN/Dateien/ New/RE_capacity_highlights_2018.pdf; Levashova et al. (eds.), Bridging the Gap Between International Investment Law and the Environment, Eleven International Publishing, 2015; Miles, Dispute Resolution and Climate Change: The Paris Agreement and Beyond, International Chamber of Commerce, 2017; Miles, Research Handbook on Environment and Investment Law, Edward Elgar, 2016. Miles/Swan, Climate Change and Dispute Resolution, 2017; Mooney/Grandoni, New York City sues Shell, ExxonMobil and other oil companies over climate change, The Washington Post, 10 January 2018, https:// www.washingtonpost.com/news/energy-environment/wp/2018/01/10/new-york-city-sues-shell-exxonmobiland-other-oil-majors-over-climate-change/?utm_term=.95770433c1d8; Moraga, Nuevo Marco Legal para el Cambio Climático, LOM 2009; Müller/Michaelowa, How to operationalize accounting under Article 6 market mechanisms of the Paris Agreement, Climate Policy 2019; Nachmany/Setzer, Global trends in climate change legislation and litigation: 2018 snapshot, Grantham Research Institute on Climate Change and the Environment, May 2018, https://www.cccep.ac.uk/wp-content/uploads/2018/04/Global-trends-in-climatechange-legislation-and-litigation-2018-snapshot-2.pdf; Narassimhan et al., Carbon pricing in practice: a review of existing emissions trading systems, Climate Policy, 2018; OECD, Investing in Climate, Investing in Growth, June 2017, https://www.oecd.org/environment/cc/g20-climate/synthesis-investing-in-climate-investing-in-growth.pdf; ClientEarth, Ostrołęka C: Energa’s and Enea’s Board Members’ Fiduciary Duties to the Companies and Shareholders, Briefing, September 2018, https://www.documents.clientearth.org/wpcontent/uploads/library/2018-09-20-clientearth-briefing-ostroleka-c-energa-and-enea-board-members-fiduciary-duties-to-the-companies-and-shareholders-ce-en.pdf; Peel, Issues in Climate Change Litigation, Carbon & Climate Review 5, 2011, p. 11 et seq.; Peel/Orofnosky, A Rights Turn in climate Litigation?, Transnational Environmental Law 7:1, 2018, p. 37 et seq.; Pembina Institute, Environmentalists Win Landmark Oilsands Case, March 2008, https://www.pembina.org/media-release/1600; Peterson, As Another Spain Award Looms, Four More Previously-Confidential Renewable Cases Surface; Potential Liability For All Pending Claims Now Exceeds $9.5 Billion, Investment Arbitration Report, 7 February 2018; Power/ Baker, Energy Arbitrations, The European Arbitration Review, 2018, https://globalarbitrationreview.com/ insight/the-european-arbitration-review-2018/1148943/energy-arbitrations; Rayfuse/Scott (eds.), International Law in the Era of Climate Change, Edward Elgar, 2013; Schill/Tams/Hofmann (eds.), International Investment Law and Development: Bridging the Gap, Edward Elgar, 2015; Sengupta, Treaty to Phase Out “Greenhouse Gasses on Steroids” to Enter Force, The New York Times, 17 November 2017; Herbert Smith Freehills, Exxon Mobil Is Awarded US$1.6 Billion in ICSID Claim against Venezuela – to Be Set off against Award in Parallel Contractual Arbitration, 16 October 2014, https://hsfnotes.com/arbitration/2014/ 10/16/exxon-mobil-is-awarded-us1-6-billion-in-icsid-claim-against-venezuela-to-be-set-off-against-awardin-parallel-contractual-arbitration/; Solomon, Mexican judge rules against higher ethanol mix in gasoline, Reuters, 26 February 2019, https://www.reuters.com/article/us-mexico-oil-ethanol/mexican-judge-rulesagainst-higher-ethanol-mix-in-gasoline-idUSKCN1QF2YT; Tashboya, Kigali Amendment to the Montreal Protocol enters into force in 2019, The New Times, 19 November 2017, https://www.newtimes.co.rw/ section/read/223885; Teng’o, Montreal Protocol celebrates another milestone as agreement to reduce climate-warming gases is set to enter into force in 2019, UN Environment Programme, November 2017, https://www.unenvironment.org/news-and-stories/press-release/montreal-protocol-celebrates-another-milestone-agreement-reduce; The Canadian Press, McKenna says amendment signed to Montreal Protocol, CBC News, November 2017, https://www.cbc.ca/news/politics/mulroney-mckenna-montreal-protocol-1.4409936; UN Environment Programme, Green Foreign Direct Investment in Developing Countries, 2017, http://ccsi. columbia.edu/files/2017/10/Green_Foreign_Direct_Investment_in_Developing_Countries.pdf; UNEP Finance Initiative, Investment Grade Climate Change Policy: Financing the Transition to the Low Carbon Economy, 2011, http://www.unepfi.org/fileadmin/documents/Investment-GradeClimateChangePolicy.pdf; UNFCCC, Adoption of the Paris Agreement, January 2016, COP 1/CP.21; UNFCCC, Modalities and procedures for the effective operation of the committee to facilitate implementation and promote compliance referred to in Article 15, paragraph 2, of the Paris Agreement, March 2019, 20/CMA.1; UNFCCC, Modalities, procedures and guidelines for the transparency framework for action and support referred to in Article 13 of the Paris Agreement, March 2019, 18/CMA.1; UNFCCC, Preparations for the implementation of the Paris Agreement and the first session of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement, March 2019, COP 1/CP.24; UNFCCC, Report of the Subsidiary Body for

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Part 3. State liability under international and European law Implementation on its forty-sixth session, held in Bonn from 8 to 18 May 2017, June 2017, UN Doc SBI/ 2017/7; United Nations Environment Programme, The Status of Climate Change Litigation – A Global Review, May 2017, https://wedocs.unep.org/handle/20.500.11822/20767; Voight, Research Handbook on REDD+ and International Law, Edward Elgar, 2016; Wedy, Climate Litigation and Litigation in Brazil, Sabin Centre for Climate Change Law, October 2017, https://climate.law.columbia.edu/sites/default/files/ content/Wedy-2017-10-Climate-Legislation-and-Litigation-in-Brazil.pdf; Weikmans/Roberts, Pocket Guide to Transparency under UNFCC, ECBI, 2017; White, Navigating Climate Risk, Ceres, September 2013, https:// static1.squarespace.com/static/57c0a650197aea879e3a81ef/t/58261ad3e6f2e16e929e1130/1478892253649/ Navigating+Climate+Risk-+Ceres’+Primer+for+Family+Offices.pdf.

Contents I. Introduction ..................................................................................................... II. International policy & treaty commitments to climate justice & investment in carbon neutral/negative sustainable development ........ III. Climate change litigation guiding investment risk assessment & decision-making.......................................................................................... IV. Innovations in investment law & policy related to clean energy, climate change and sustainable development........................................... 1. Treaty & policy developments................................................................. 2. Investment treaty disputes........................................................................ V. Conclusions ......................................................................................................

1 4 11 39 40 51 70

I. Introduction The risks and global impacts of climate change are gaining in significance and priority throughout the world, with a majority of countries and enterprises working to redirect investment flows towards more sustainable, low-carbon development pathways, while others face a rising tide of potentially costly litigation on climate change. 2 As reflected in the Paris Agreement on climate change1 and its new ‘Katowice Rulebook’ Paris Agreement Work Programme (PAWP),2 the growing global importance of harnessing higher levels of investment and financing for renewable energy and climate mitigation technologies, as well as climate adaptation and resilience, has never been clearer or more pressing. Indeed, as specific investment needs are being defined and refined in the National Determined Contributions (NDC) to the global response to climate change that each country intends to achieve under the Paris Agreement,3 many government authorities and policy-makers, alongside public and private enterprises, seek to grow the scope and scale of new ‘green economy’ investment opportunities in this field.4 Indeed, renewable generation capacity increased by 8.3 % in 2017, and by a further 7.9 % in 2018, continuing the trend of 7–9 % annual capacity growth in recent years.5 1

1 UNFCCC, Decision 1/CP.21: Adoption of the Paris Agreement (29 January 2016) UN Doc CP/2015/ 10/Add.1, Annex Art. 2.1(c), (Paris Agreement). 2 UNFCCC, Decision 1/CP.24: Preparations for the implementation of the Paris Agreement and the first session of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement (19 March 2019) UN Doc CP/2018/10/Add.1, (Katowice Rulebook). 3 For the interim NDC Registry see https://unfccc.int/process/the-paris-agreement/nationally-determined-contributions-ndcs#eq-2. 4 Global investment in renewable energy has exceeded $240 billion per year for the last decade. In 2017, the total of $279.8 billion was 2 % higher than the 2016 equivalent, while lower than $323.4 billion in 2015. Fortunately, drastic reductions in capital and generating costs for renewables have been instrumental in broadening the markets for these technologies. 5 See International Renewable Energy Agency (IRENA), Renewable capacity highlights, March 2018, available at: http://sun-connect-news.org/fileadmin/DATEIEN/Dateien/New/RE_capacity_highlights_2018. pdf.

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However, in its landmark report ‘Investing in Climate – Investing in Growth,’ the 3 Organization for Economic Co-operation and Development (OECD) noted that to meet the targets set out in the global Sustainable Development Goals (SDGs), and to achieve the high international ambition of the Paris Agreement, further exponential increases are essential for investment in low-carbon green growth, including climate-smart projects and infrastructure, particularly in developing countries.6 In this chapter, we argue that recent trends in both climate change and energy litigation and arbitration can support global efforts, as per the Paris Agreement, to enhance the implementation of the UN Framework Convention on Climate Change (UNFCCC), including its objective, by aiming ‘to strengthen the global response to the threat of climate change, in the context of sustainable development and efforts to eradicate poverty, including by… (c) Making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development.’7

II. International policy & treaty commitments to climate justice & investment in carbon neutral/negative sustainable development States’ obligations under SGD 7 to ‘ensure access to affordable, reliable, sustainable, 4 and modern energy for all’, SGD 13 to ‘take urgent action to combat climate change and its impacts’, and the high level of international ambition prescribed under the Paris Agreement can be achieved through a rapid increase of investment into carbon neutral and negative sustainable development projects. The UNFCCC negotiations on modalities and guidelines for Paris Agreement implementation are significant for both future development of investment law and for climate and energy policy. At the 24th UNFCCC Conference of the Parties (CoP) in Katowice, key aspects of these guidelines were agreed by the ‘Conference of the Parties serving as the Meeting of the Parties to the Paris Agreement’ (CMA), highlighting advances that have been achieved with regard to climate mitigation, adaptation and transparency,8 and these advances were not significantly altered in the 25th UNFCCC Conference of the Parties in Madrid under the Chilean Presidency. Under the Paris Agreement, States ‘should’ further provide information on climate 5 change related impacts and adaptation, and their reports on mitigation action and support will undergo a technical expert view. Overall, this adaption-related information has certain advantages for investors, and for public investment authorities seeking to encourage financial flows to key sectors. For instance, such transparency can help States to understand whether international adaptation finance is effective and to learn from each other on how to increase infrastructure, agriculture, renewable energy or other investments to levels required to meet climate mitigation and adaptation objectives.9 For instance, at the 46th session of the Subsidiary Body for Implementation (SBI), India, one of 29 countries undergoing peer review on the steps they have been taking to reduce greenhouse gas emissions and build resilience, offered an intervention on the benefits of 6 Organization for Economic Co-operation and Development (OECD), ‘Investing in Climate, Investing in Growth’ (June 2017) https://www.oecd.org/environment/cc/g20-climate/synthesis-investing-in-climate-investing-in-growth.pdf. 7 Paris Agreement, supra (fn. 1). 8 This analysis is due to the helpful legal research and excellent scholarly drafting work of Natalia Kubesch, CISDL Researcher, University of Cambridge and Sakshi, CISDL Researcher, University of Cambridge, in 2018. 9 Weikmans/Timmons Roberts, Pocket Guide to Transparency under the UNFCC, (2017) European Capacity Building Initiative (ECBI) 36.

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this ‘facilitative sharing of views’.10 They presented an ambitious target to achieve a renewable energy capacity of 175,000 MW by 2022, predominantly through solar power plants, particularly with the Jawaharlal Nehru National Solar Mission, whose 100,000 MW capacity was central to achieving this target. Developed and developing countries alike were interested in how India advanced this energy policy in a short timeframe and how the federal government was working with local governments and the private sector, including investors.11 6 On transparency actions such as reporting, the Paris Agreement requires that all States ‘shall’ provide national inventory reports and submit information that allows tracking the progress towards achievement of their NDCs to the objectives of the treaty.12 At CoP21 in Paris, the States accepted that ‘the transparency framework shall provide flexibility’ to developing countries.13 The modalities, procedures and guidelines in the Katowice Rulebook reflect the flexibility needed by developing States to implement Article 13 and build their ‘transparency-related capacity’,14 by prescribing mechanisms to provide technical advice and support in their efforts.15 These guiding principles recognize the special circumstances of small island developing states (SIDS) and least developed countries (LDCs),16 specifying the flexibility to be afforded to developing parties in light of their respective capacities,17 and stating that the availability and application of these provisions are to be self-determined.18 Under this framework, developing States highlight the flexibility provision to be applied, outline their capacity constraints and determine an ‘estimated time frames for improvements to those capacity constraints.’19 Where such a provision has been applied by a developing country, a technical expert review team may not assess the State’s decision to apply it or evaluate whether they had the capacity to implement the agreement without this flexibility.20 Greater transparency also encourages confidence and trust among States Parties to the Paris Agreement, enabling them to learn from each other’s experiences in an open way.21 As such, allowing for discretionary reporting may be problematic for investment if it impedes the emergence of a clear picture of the international climate finance landscape.22 At CoP24 in Katowice, it was decided that developing countries may submit information on ‘financial, technology transfer, and capacity-building support needed and received’23 at their own discretion.24 While it is crucial that ‘common but differentiated responsibility’ be respected, greater transparency in this regard 10 UNFCCC, Report of the Subsidiary Body for Implementation on its forty-sixth session, held in Bonn from 8 to 18 May 2017 (30 June 2017) UN Doc SBI/2017/7. 11 Huang, Why transparency makes the Paris Agreement a good deal, Centre for Climate and Energy Solutions, 2017, available at https://www.c2es.org/2017/07/why-transparency-makes-the-paris-agreementa-good-deal/. 12 Paris Agreement, supra (fn. 1), art. 13. 13 Ibid. art. 13(2). 14 UNFCCC, Decision 18/CMA.1 Modalities, procedures and guidelines for the transparency framework for action and support referred to in Article 13 of the Paris Agreement (19 March 2019) UN Doc PA/CMA/2018/3/Add.2, annex 7, (18/CMA.1). 15 Ibid. para. 15(a). 16 Ibid. para. 3(a). 17 Ibid. para. 3(c). 18 Ibid. para. 6. 19 Ibid. 20 Ibid. 21 Cook, The Progressive Approach and the Paris Agreement, in: Miles, Dispute Resolution and Climate Change: The Paris Agreement and Beyond, International Chamber of Commerce, 2017. 22 Weikmans, supra (fn. 9), 34. 23 Paris Agreement, supra (fn. 1), art. 13(10). 24 18/CMA.1, supra (fn. 14) 4.

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provides the ability to accurately assess the climate finance landscape which helps determine the most cost effective climate change projects and identify gaps in available finance, opening new opportunities and avoiding the duplication of efforts. A further important element of the Paris Agreement, in Article 15, is elaboration of a 7 mechanism to promote compliance and implementation of the treaty, and this was further detailed in the outcomes of the Katowice CoP24. The mechanism itself is a geographically balanced Committee consisting of twelve members with ‘recognized competence in…scientific, technical, socioeconomical, or legal fields’.25 While the Committee continues to elaborate its own rules of procedures, subject to approval by the CMA, it is intended to operate in a ‘facilitative…transparent, non-adversarial, and non-punitive’26 manner, ensuring that the ‘respective national capabilities and circumstances of the Parties’ are accounted for.27 The Committee is mandated with bringing States into compliance where they have not fulfilled the binding obligations of the Paris Agreement, namely, to ‘prepare, communicate and maintain’ successive NDCs, periodically report on their emissions and progress towards achieving the outlined goals in their NDC, and submit consecutive NDCs whose ambition does not fall below that of a previous one. Consequently, the permitted circumstances in which the Committee may respond to cases of non-compliance are reflective of these obligations. The Committee may respond to non-compliance through a ‘self-triggering’ mechanism prompted by a written submission from a State with respect to its own implementation and compliance or,28 by a Committee decision to initiate such proceedings. The latter may done where a State has failed to communicate or maintain an NDC,29 submit a mandatory report or communication of information,30 or participate, on the basis of information provided by the secretariat, in the facilitative, multilateral consideration of progress.31 Additionally, where there has been ‘significant and persistent’32 inconsistencies in the information submitted by a State, the Committee may, with the consent of the relevant State, engage in a consideration of these issues, based on recommendations made by the technical expert review and the State’s written submission.33 In line with its role as facilitative, non-punitive body, the aim of the Committee is to help bring States into compliance, rather than punish them for previous failures. The measures they may take include engaging in a dialogue with the relevant State to identify obstacles to compliance,34 recommend an action plan,35 and assist the State with engaging with the appropriate finance or capacity-building bodies to facilitate compliance.36 The Committee may also identify systemic issues plaguing a number of States, and bring these issues, and solutions to the CMA.37 Evidently, the Committee will not operate as a forum for conflict or dispute settlement, and does not exist to impose sanctions or 25 UNFCC, Decision 20/CMA.1: Modalities and procedures for the effective operation of the committee to facilitate implementation and promote compliance referred to in Article 15, paragraph 2, of the Paris Agreement (19 March 2019) UN Doc PA/CMA/2018/3/Add.2, annex, 5 (20/CMA.1). 26 Ibid. 2. 27 Ibid. 17. 28 Ibid. 20. 29 Ibid. 22(a)(i). 30 Ibid. 22(a)(ii) and (iv). Mandatory information pursuant to Paris Agreement: art. 13(7) and 13(9) and art. 9(5) and 9(7). 31 Ibid. 22(a)(iii). 32 Ibid. 22(b). 33 Ibid. 22(b). 34 Ibid. 30(a). 35 Ibid. 30(d). 36 Ibid. 30(b). 37 Ibid. 32.

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penalties.38 Implementation of the Paris Agreement depends on deepening international cooperation over time, reliable access to climate finance and other support, as well as public pressure, backed by expert, business, youth and civil society collaboration, among other elements, to ensure the rapid scaling up of ambition.39 Greater transparency can impact compliance and implementation, and also the means of settling any international disputes on climate change. The Paris Agreement assists States to consider and verify each other’s contributions to climate change, heightening accountability.40 State actions increasingly come under scrutiny, as the transparency framework provides countries and wider stakeholders with information on national decisions, on regulations, investments, and measures to protect local populations or the way companies are regulated. States or private entities may decide to study and rely on this information in challenging States’ failure to comply with their responsibilities under the Paris Agreement, or to otherwise provide reasonable measures to address climate change. For investors, the implication is centrally one of increased risk for those still insisting on obsolete technologies and fuels. As such, greater transparency can trigger dispute settlement proceedings regarding state’s non-compliance with mitigation/adaptation commitments. Indeed, there is the possibility that the transparency required under climate agreements can facilitate claims under investment treaties by private investors based on failure to abide by mitigation/adaptation-related commitments. However, in terms of investor-state arbitration, the question arises whether this dispute settlement process will further or impede the objectives of the Paris Agreement.41 Although disputes directly challenging environmental standards are rare, as the climate space continues to grow, climate related or adjacent disputes related to contract and market mechanisms may expand. One question that remains is whether disputes between states and private entities will drive fragmentation in international law, and not give sufficient weight to the importance of the delivery of tailored, country-specific NDCs. 8 Further, at the international level, other international treaty regimes and institutions also play a role in fostering climate friendly investment. For example, the Kigali Amendment to the Montreal Protocol, which directly seeks to discourage investments in ozone-depleting substances that are also likely to have serious effects on global climate change,42 passed its ratification threshold in 2017. The accord, which seeks to phase down climate-warming hydrofluorocarbons (HFCs) under the Montreal Protocol on Substances that Deplete the Ozone Layer, entered into force on 1 January 2019. Firms that produce and use coolants in their products will need to develop alternative technologies in order to gain access to a new global market for replacement coolants and continue to participate in the growing market for refrigerators and air conditioning. States committed to phase out HFCs gradually by more than 80 % over a 30-year period, along four tracks of ‘Article 5 Parties’ which reflect nuanced differences between nations, particularly their varying economic circumstances, reliance on HFC technologies, and the cost of alternative technologies. Many high-income countries will cut HFCs from 2019, consuming no more than 15 % of their 2011–2013 averaged baseline 38 Centre for Climate and Energy Solutions, Outcomes of the U.N. Climate Change Conference in Bonn, Centre for Climate and Energy Solutions, November 2017, available at https://www.c2es.org/site/ assets/uploads/2017/11/outcomes-of-the-u-n-climate-change-conference-in-bonn.pdf. 39 Ibid. 40 Kate Cook, Interview with Wendy Miles QC and Angeline Welsh, Arbitration and climate change, The Law of Nations Podcast, November, 2017. 41 Ibid. 42 Kigali Amendment (23 November 2016) to the Montreal Protocol on Substances that Deplete the Ozone Layer (16 September 1989) 1522 UNTS 3, entered into force 5 May 1992.

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emissions by the year 2036. States will receive support through the Montreal Protocol’s Multilateral Fund. Montreal Protocol transitions from controlled substances to new alternatives have often been completed ahead of schedule. The incentive for countries to ratify and comply with the Kigali Amendment is strong. Following the Montreal Protocol’s practice of restricting trade in controlled substances between parties and non-parties, the amendment foresees implementing trade restrictions on HFCs with non-parties by 2033, provided that at least 70 countries have ratified the deal. The protocol’s trade element is an innovative feature that has ensured very broad support for the accord and all its amendments, as ICTSD has noted.43 The Kigali Amendment is estimated to prevent up to 0.5 degrees Celsius in global warming above pre-industrial levels by the end of the century. As an additional note, the International Civil Aviation Organization (ICAO) has also 9 further progressed in developing its climate investment policy, particularly through the establishment of a new Carbon Offsetting and Reduction Scheme for International Aviation (CORSIA), which if implemented effectively, holds the potential to raise important revenues for climate finance, and to change the direction of future investments in aviation towards more the adoption of renewable fuels and practices.44 In essence, although the obligations of the Paris Agreement are not designed to 10 dictate the actions should take with regard to climate action, the treaty may well lead to opportunities, both at international and also national levels, for climate litigation and dispute settlement to play an increasing crucial role in advancing the aims of the Paris Agreement.

III. Climate change litigation guiding investment risk assessment & decision-making Of potential relevance to investors, and international investment law, several major 11 climate change litigations are being advanced, with the first few ‘wins’ in a growing flood of lawsuits. Indeed, some 1744 climate change cases had been filed by March 2020 in 34 countries in Africa, Asia, Pacific, Europe and the Americas. The United States had the highest number of cases at 1393, according to the UN Environment Program and the Sabin Center for Climate Change Law at the University of Columbia Law School.45 A new wave of emerging cases is querying the roles of States, as well as public and 12 private enterprise, in implementing climate change laws and policies to prevent dangerous impacts.46 The judicial decision and court filings reveal several trends with implications for investment policies.

43 Teng’o, Montreal Protocol celebrates another milestone as agreement to reduce climate-warming gases is set to enter into force in 2019, UN Environment Programme, 20 November 2017, https://www.unenvironment.org/news-and-stories/press-release/montreal-protocol-celebrates-another-milestone-agreementreduce; The Canadian Press, McKenna says amendment signed to Montreal Protocol,’ CBC News, 20 November 2017, https://www.cbc.ca/news/politics/mulroney-mckenna-montreal-protocol-1.4409936; Sengupta, Treaty to Phase Out “Greenhouse Gasses on Steroids” to Enter Force, The New York Times, 17 November 2017; Tashobya, Kigali Amendment to the Montreal Protocol enters into force in 2019, The New Times, 19 November 2017, https://www.newtimes.co.rw/section/read/223885. 44 ICAO, Carbon Offsetting and Reduction Scheme for International Aviation, https://www.icao.int/ environmental-protection/Pages/market-based-measures.aspx. 45 Sabin Center for Climate Change Law, Climate Change Database: US and Non-US Climate Change Litigation, http://climatecasechart.com/ (accessed 11 March 2020). 46 Miles/Swan, 11(2) Dispute Resolution International 117.

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First, a significant proportion of claims exhibit a tendency to focus on failures of institutions and nations to adequately consider climate change risks and impacts in policy and planning.47 The last decade has yielded a variety of successful challenges to government environmental assessment and permitting processes for major development and energy infrastructure projects on grounds of insufficient regard for climate change, from the perspectives of both mitigation and adaptation. 14 For instance, in Pembina Institute for Appropriate Development and Others v. Attorney General of Canada and Imperial Oil, the Federal Court of Canada found a government joint review panel to have erroneously approved the proposed extraction of tar sands oil near Kearl Lake in the Athabasca Oil Sands region.48 The 2008 ruling held that the panel had failed to ‘provide a cogent rationale for its conclusion that adverse environmental effects of the greenhouse gas emissions of the Project would be insignificant,’ while neglecting to comment on potential mitigation strategies.49 Indeed, while the project has proceeded in subsequent years, the decision marked the first successful appeal of a joint panel assessment and clearly established that engagement in a ‘science and fact-based assessment’ of climate impacts falls within the purview of environmental assessment.50 15 In Wade v. Warrnambool CC and Anor (2009), the Civil and Administrative Tribunal in Victoria, Australia overturned planning permits that had been issued by the Warrnambool City Council permitting the development of a residential area on lowlying wetlands.51 The tribunal asserted that these permits were in contravention of the state’s Planning and Environment Act, as the Council neglected to take adequate account of sea level rise projections and associated flood and storm surge risks at the site under climate change.52 The case illustrates the prominence of adaptation-based arguments, which have increased in prevalence in recent years.53 16 At the international level, the 2015 Paris Agreement emerged as a novel anchorage for lawsuits of this kind, giving shape and legal significance to national mitigation commitments.54 Moreover, the Agreement seems to provide momentum within a growing climate law and governance community.55 In the 2017 Vienna Schwechat Airport Expansion56 case, for instance, several NGOs persuaded the Austrian Administrative Court that the expansion of the Vienna airport would jeopardize the emission reductions targets set forth inter alia in the Paris Agreement. Concurrently, in the EarthLife Africa Johannesburg v. Minister of Environmental Affairs and Others proceedings, the South African High Court found ‘comprehensive assessment’ of climate change impacts to be relevant and requisite components of environmental review for the proposed Thabametsi Power Project, a coal-fired installation of 1200 MW.57 Although 13

Peel, Carbon & Climate Law Review, 2011, 5, 15 et seq. Pembina Institute for Appropriate Development and Others v. Attorney General of Canada and Imperial Oil [2008] FC 302. 49 Ibid. at paragraph 70. 50 Ibid. at paragraph 72; “Environmentalists Win Landmark Oilsands Case” (Pembina Institute) https:// www.pembina.org/media-release/1600 accessed March 20, 2020. 51 Wade v. Warrnambool CC & Anor [2009] VCAT 2177. 52 Ibid. 53 Climate Change Database: US and Non-US Climate Change Litigation, supra (fn. 45). 54 Peel, supra (fn. 47). 55 “The Status of Climate Change Litigation – A Global Review” (United Nations Environment Programme; May 2017) https://wedocs.unep.org/handle/20.500.11822/20767 accessed March 20, 2020. 56 Vienna Airport Expansion, W109 2000179-1/291E, Federal Administrative Court, Austria (2 February 2017). 57 Earthlife Africa Johannesburg v. Minister Of Environmental Affairs and Others [2017] ZAGPPHC 58 (2017) 65662/16, at paragraph 20. 47 48

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the statute in question, the National Environmental Management Act (NEMA),58 did not explicitly address climate change, the Court reasoned that South Africa’s emissions reduction commitments under its Paris Agreement NDC necessitated the consideration of climate change under the statutory review process.59 As such, approval for the project was deemed unlawful over the objections of the Minister of Environmental Affairs.60 Further, in Plan B Earth and Others v. Secretary of State for Transport,61 the Court of 17 Appeal for England and Wales held that the British government’s national policy statement authorizing the expansion of runways at Heathrow International Airport failed to appropriately consider Paris Agreement goals as expressed in the UK’s NDC. The failure to take climate change impacts into consideration, resulted in the proposed expansion being found in violation of the Planning Act (2008), which mandates the performance of a strategic environmental assessment as set forth by EU Council Directive 2001/42/EC. As such, the government’s approval of a new runway was struck down pending a review of the national policy statement consistent with the Planning Act, which must weigh Paris goals, including ‘non-carbon dioxide climate impacts of aviation,’ in future analysis.62 These cases illustrate how national litigation may be used as ‘climate swords’63 to 18 promote more progressive climate law and regulation. These legal actions, regardless of their outcomes, provide certainty and predictability of the domestic climate frameworks on which investors base their decisions. Successful challenges can compel States to fulfil their international climate change obligations and could, as a result, incentivize investment into renewable energy and discourage or prohibit investment into environmentally harmful activities. While there are concerns that national climate litigation could trigger investment claims where judicial decisions initiate legal changes that disadvantage the fossil fuel industry, a successful outcome could oblige a government to suspend guarantees or promises made to investors. This raises questions about whether a carbon-intensive investment, in light of the Paris Agreement and other decisions above, is truly in ‘like circumstances’ to investment which supports renewables and other lowcarbon pathways.64 Overall, these cases highlight the evolving contours of climate change litigation in 19 generating increasingly forceful linkages between national legislation and policy goals, and international processes under the Paris Agreement. Indeed, recent cases suggest litigation is effective in ensuring the credibility of NDC pledges and that it will be an integral mechanism to guarantee a global scale-up of climate ambition consistent with a 1.5°C warming target.65 While legal efforts along these lines have already enjoyed 58

NEMA 1998. Supra (fn. 80) at paragraph 35. 60 Ashukem, 13 Law, Environment and Development Journal 35. 61 Plan B Earth and Others v. Secretary of State for Transport [2020] EWCA Civ 214. . 62 Ibid. at paragraph 13(1). 63 Gerrard/Wilensky, The Role of the National Courts in GHG Emissions Reductions in: Elgar Encyclopedia of Environmental Law. 64 For further discussion, see, e.g., Cordonier Segger/Gehring, Climate Change and International Trade and Investment Law, in: Rayfuse/Scott, International Law in the Era of Climate Change; Cordonier Segger/Gehring, Making Progress? Climate Change, Sustainable Development and International Trade and Investment Law, in: Streck/Freestone, Legal Aspects of Carbon Trading: Kyoto, Copenhagen and Beyond; Cordonier Segger, Sistemas de inversión y comercio para economías bajas en emisiones de carbono más sustentables, in: Moraga, Nuevo Marco Legal para el Cambio Climático, LOM 2009. 65 Nachmany/Setzer, Global trends in climate change legislation and litigation: 2018 snapshot (Grantham Research Institute on Climate Change and the Environment; May 2018) https://www.cccep.ac.uk/ wp-content/uploads/2018/04/Global-trends-in-climate-change-legislation-and-litigation-2018-snapshot2.pdf accessed March 20, 2020. 59

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moderate success to date, it is anticipated that continuous reinforcement of the scientific consensus and civil society movements driving a public sense of urgency for climate action will enhance the legal foundation of future claims seeking to hold governments accountable to their national and international adaptation and mitigation obligations.66 20 Second, cases increasingly focus on constitutional rights to a clean and healthy environment, seeking to hold authorities accountable for violation of universal values of human rights, and more specifically, national climate policies.67 Thus, recent lawsuits on climate change have not only provided a judicial forum to further greater ‘physical and social understanding of climate change’,68 but also indicate a trend towards a human rights framework and approach.69 However, the success rate of these cases has been mixed, depending on the adjudication forum. While national courts may find for the climate and for peoples’ rights in accordance with the local law, some remain reluctant to find violations by governments. This trend, of course, could be directly relevant to risk analysis among investors already facing concerns and reputational losses in relation to their human rights records. 21 Among early rights-based climate litigations of note is Gbemre v. Shell Petroleum Development Company of Nigeria Ltd. and Others (2005), before the Federal Court of Nigeria. The case concerned the livelihoods of the Iwherekan people, a farming and fishing community in Nigeria’s Delta State which contended gas flaring practices from major oil development projects in the region infringed upon their fundamental rights of life (including healthy environment), and dignity of human persons. The Court reasoned that flaring ‘endangers and diminishes life, and does not lead to its full enjoyment’70 given the adverse impacts of associated air pollution on respiratory health, crop production and food security, local vegetation and ecosystems, and greenhouse gas emissions.71 By extension, the Court held continued gas flaring to be unconstitutional under relevant provisions of the Federal Republic of Nigeria and the African Charter on Human and Peoples Rights.72 22 Recognizing the importance of place to the enjoyment of human rights, the case of AD (Tuvalu) (2014) anticipates an expanding legal discourse at the intersection of climate change and immigration. The ruling by the Immigration and Protection Tribunal of New Zealand concerns a family facing deportation to Tuvalu following the denial of resident visas.73 Upholding as ‘widely accepted’ the notion that ‘climate change can adversely affect the enjoyment of basic human rights,’ the Tribunal sympathized with the family’s claims that deportation would expose them to significant climate change vulnerability.74 These circumstances, inter alia, were deemed sufficient to constitute ‘exceptional circumstances of a humanitarian nature,’ negating the family’s removal from New Zealand under the 2009 Immigration Act.75 Banda/Fulton, 47 Envtl L Rep News & Analysis 10121. Climate Law & Governance Initiative (CLGI), in partnership with the UN Framework Convention on Climate Change (UNFCCC), online: http://www.climatelawgovernance.org/. See also Grantham Research Institute on Climate Change and the Environment, Policy Brief: Global Trends in Climate Change Legislation and Litigation 2017, (March 2017). This repository of climate litigations worldwide pegs the number of cases globally at 250 across 25 different jurisdictions. 68 Fisher, 35 Law and Policy 236. 69 Peel/Orofnosky, Transnational Environmental Law, 7:1, 37 et seq., 2018. 70 Gbemre v. Shell Petroleum Development Company of Nigeria Ltd. and Others [2005] FHC/B/CS/53/ 05, at para. 14. 71 Ibid. para. 7 (c). 72 Ibid. para. 1. 73 AD (Tuvalu) [2014] NZIPT 501370-371. 74 Ibid. para. 28. 75 Ibid. para. 2. 66 67

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More recent cases have broken open a series of subsequent legal claims on human 23 rights grounds. In the landmark 2015 case Ashgar Leghari v. Federation of Pakistan76, a farmer sued the Pakistani government for failing to carry out its Framework for Implementation of Climate Change Policy (2014- 2030) and National Climate Change Policy (2012). In a decision focusing on the adequacy of the government’s adaptation programs, the Lahore High Court found the Pakistani government liable for taking insufficient action to protect the rights of its citizens as codified in articles 9 (right to life), 14 (human dignity), 19(a) (information) and 23 (property) of Pakistan’s constitution.77 Opining that the ‘the delay and lethargy of the State in implementing the Framework offend the fundamental rights of the citizens,’ the court ordered the government to appoint a climate change focal person for many government ministries, with a list of action points, and to create a multi-stakeholder Climate Change Commission to oversee the government’s progress.78 Similarly, the case of Urgenda Foundation v. State of the Netherlands – a series of 24 decisions spanning district and appeals courts in the Hague, and the Supreme Court of the Netherlands between 2015 and 2019 – is among the most prominent to use a human rights lens to consider national obligations toward climate change mitigation. As the first decision to compel national efforts to reduce emissions under the legal force of customary norms of international law, the initial ruling invoked the no harm and prevention principles, and the precautionary approach, to mandate a national commitment to lower GHGs by 25 % from a 1990 base year by 2020.79 Finding the government’s present mitigation trajectory incompatible with Paris Agreement goals, the district court’s ruling was upheld on appeal with the reasoning that the current ‘emission level is unlawful […] contrary to the duty of care exercised [under] Articles 2 and 8 of the European Convention on Human Rights (ECHR),’ which protect rights to life and private life.80 Emphasizing that the global nature of climate change does not excuse the Dutch government from an obligation to do its part pursuant to Articles 2 and 8 of ECHR, the Supreme Court affirmed core aspects of the decision, asserting that ‘dangerous climate change could have a severe impact on the lives and welfare of the residents of the Netherlands.’81 While Ashgar and Urgenda demonstrate the effectiveness of human rights-based 25 arguments in ensuring state accountability to address climate change and have spurred additional momentum for litigation in this vein, parallel approaches have been met with scepticism in some cases. In March 2017 an Irish environmental charity challenged a council’s decision to issue a five-year extension to the Dublin Airport Authority for their planning permission to construct a new runway.82 While the Court recognized ‘a personal constitutional right to an environment under the Irish Constitution’, it did not find any violation of this right.83 It was observed that the exercise of powers in the present case did not constitute any departure from the objectives set out in the Climate Action and Low Carbon Development Act 2015, which the petitioners had alleged to be breached by the impugned conduct. This pattern of reasoning was similarly held in Greenpeace Norway v. Government of Norway when the Oslo District Court rejected the NGO’s argument that Norway’s oil and gas exploration in the Arctic violated citizens’ 76

Leghari v. Federation of Pakistan [2015] W.P. No. 25501/201. Ibid. para. 7. 78 Ibid. para. 1. 79 Urgenda Foundation v. State of the Netherlands [2015] HAZA C/09/00456689. 80 Ibid. para. 3(3). 81 Ibid. see paragraphs 8.1–8.3.5. 82 Friends of the Irish Environment CLG v Fingal County Council [21 November 2017] No. 201 JR. 83 Ibid. para. 241. 77

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right to a clean environment, despite finding that such right was protected by the Constitution.84 In contrast, South Africa’s High Court accepted the claimants’ argument that in failing to consider climate change-related impacts when approving the building of coal plant, the government had violated fundamental rights. It therefore invalidated the plant’s approval.85. This sends a message to governments and developers/investors proposing projects with potentially significant climate change impacts in South Africa that permission for such projects is contingent on proper climate change impact assessments. 26 Following this trend, in the 2019 decision in ENvironnement JEUnesse v. Procureur General du Canada,86 the Superior Court of Québec upheld climate change impacts on fundamental rights as justiciable under the Canadian Charter of Rights and Freedoms, even while declining to effectuate a class action against the Canadian government on behalf of Quebec citizens younger than 35. The case retains broader relevance as nonstate actors look to pursue various forms of collective action to protect investments from climate risks under emerging rights-based arguments. Building on this decision, in January of 2020, the Supreme Court of Mexico nullified a rule promulgated by the country’s Energy Regulatory Commission which would have permitted an increase in the maximum allowable ethanol content in gasoline from 5.8% to 10%.87 Acknowledging the agency’s economic rationale to lower fuel costs, the Court emphasized the application of the precautionary principle in upholding the right to a healthy environment, thereby requiring more thorough evaluation of ethanol’s environmental consequences, including GHG emissions associated with fuel combustion. The ruling is particularly significant in light of American interests in exporting high ethanol content fuels, and signals to investors that human rights-based rationales must be demonstrated by those seeking access to the Mexican market.88 27 Considered cumulatively, these cases establish the extent to which reliance on rightsbased approaches is becoming more common among those challenging governments’ failure to mitigate climate change, including state decisions to allow private entities to conduct environmentally harmful activities. Significantly, these cases reveal numerous potential tensions between states’ constitutional obligations towards their citizens as interpreted by national courts, and their investment treaty commitments towards international investors. Human rights will likely become further entrenched in future climate litigation, given definitive recognition of a range of fundamental rights across fora of adjudication89 and the clarity of enforcement mechanisms in international human rights regimes.90 Correspondingly, heightened attention to the nexus between climate change and human rights has the potential to shape the direction of ongoing human rights conversations in Geneva toward a more explicitly climate-sensitive view. Indeed, as climate change impacts grow in magnitude and severity, rights-based 84 Föreningen Greenpeace Norden & Natur og Ungdom v The Government of Norway through the Ministry of Petroleum and Energy Case no:16-166674TVI-OTIR/06. 85 Earthlife Africa Johannesburg, supra (fn. 79). 86 ENvironnement JEUnesse v. Procureur General du Canada [2018] 500-06-000955-183. 87 Ruling on Modification to Ethanol Fuel Rule [2019] 610/2019. 88 Solomon, Mexican judge rules against higher ethanol mix in gasoline, Reuters, February 26 2019) https://www.reuters.com/article/us-mexico-oil-ethanol/mexican-judge-rules-against-higher-ethanol-mixin-gasoline-idUSKCN1QF2YT accessed March 20, 2020. 89 Peel/Osofsky, 7 Transnational Environmental Law 37. 90 Setzer/Byrnes, Global trends in climate change litigation: 2019 snapshot, Grantham Research Institute on Climate Change and the Environment, July 2019, http://www.lse.ac.uk/GranthamInstitute/ wp-content/uploads/2019/07/GRI_Global-trends-in-climate-change-litigation-2019-snapshot.pdf accessed March 20, 2020.

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jurisprudence on the governance of human-natural systems appears among the most promising channels to further implementation of the Paris Agreement.91 Third, claimants have brought cases against individual emitters, alleging that their environmentally harmful activities have caused them particular injuries. This category encompasses cases brought by private individuals and by state authorities against private corporations. In (2007), the Brazilian Supreme Court upheld a federal trial court decision which demanded restoration of an urban mangrove forest that defendants had converted to a landfill, in violation of guidance by local environmental authorities and Article 225 of the Federal Constitution of 1988.92 The Supreme Court opinion specifically highlighted relevant science affirming the ‘ecological, economic, and social’ functions of mangrove forests ‘especially in times of climate change and rising sea levels.’93 The case illustrates that private actors must take the climate change impacts of their activities into account so as to refrain from ‘serious harm to the ecologically balanced environment and to the welfare of the collectivity.’94 In Deutsche Bank AG v. Total Global Steel Ltd. (2012), the High Court of Justice in London found that Total Global Steel’s sale of already ‘surrendered’ Certified Emissions Reductions (CERs) to Deutsche Bank constituted a violation of European Commission regulations for emissions trading under the European Union Emissions Trading System (EU-ETS).95 The ruling established that abuse of CER transfer among private parties is in contravention of EU Scheme Directive 2003/87/EC ensuring that ‘no transfers which are incompatible with obligations resulting from the Kyoto Protocol.’96 The case demonstrates that emitters will be held liable for damages in cases of non-compliance with market mechanisms for GHG reduction, and is particularly relevant given the increasing scope of regional emissions trading markets,97 and ongoing negotiations in the UNFCCC toward modalities for voluntary international cooperation with implications for global carbon markets.98 In Lliuya v RWE (2016), a Peruvian farmer sued the German energy firm RWE, seeking USD 21,000 towards flood damage prevention from glacial melt caused by the company’s contribution to climate change. While initially dismissed, on appeal in in November 2017, his demand was held admissible, allowing the case to proceed into the evidentiary phase.99 The German Appellate Court decided that despite the lack of evidence to prove linear causality directly attributing the entire flood risk posed to Lliuya’s hometown by RWE’s GHG emissions alone, it was sufficient to prove a ‘partial causation’.100 The case demonstrates that private companies can be held liable for the climate change-related damages arising from their greenhouse gas emissions. This recognition may prove significant to a number of recently filed climate litigation cases in the US, in which municipalities, provincial and State governments are suing private enterprises for their contribution to climate change, and non-governmental organiza91

Supra (fn. 107). Wedy, Climate Legislation and Litigation in Brazil, Sabin Center for Climate Change Law, October 2017, https://climate.law.columbia.edu/sites/default/files/content/Wedy-2017-10-Climate-Legislationand-Litigation-in-Brazil.pdf accessed March 20, 2020. 93 Ibid. 94 Ibid. 95 Deutsche Bank AG v. Total Global Steel Ltd. [2012] EWHC 1201 (Comm). 96 Ibid. 97 Narassimhan et al., 18 Climate Policy 967. 98 Müller/Michaelowa, 19 Climate Policy 812. 99 Beschluss des 5. Zivilsenats des Oberlandesgerichts Hamm vom 01.02.2018 in dem Rechtsstreit Lliuya ./. RWE AG (Az. 5 U 15/17 OLG HAMM). 100 Ibid. 92

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tions and individuals are suing governments or public enterprises for failing to fulfil climate obligations under national and international laws and conventions, respectively.101 32 In light of Lliuya v RWE, other notable cases include New York City’s action against Shell, Exxon Mobil Corporation and others, claiming that they are responsible for damage caused due to flooding during Hurricane Sandy;102 and County of San Mateo v Chevron Corp which involves an action by Californian local governments seeking damage and other relief from fossil fuel companies for sea level rise, focused in particular on Chevron103 and British Petroleum.104 33 In more recent developments, the Regional Court in Poznań (Poland), in its August 2019 ruling in the case of ClientEarth v Enea,105 invalided the Polish utility Enea SA’s authorization for the construction of a 1 GW capacity coal-fired power plant. The litigation was based on the Polish Commercial Companies Code, with ClientEarth claiming that the construction of the new coal power plant would harm the economic interests of the company as a result of climate-related financial risks. According to ClientEarth, Enea’s actions ‘risk breaching board members’ fiduciary duties of due diligence and to act in the best interests of the companies and their shareholders.’106 The financial risks posed by the construction of the new plant to shareholders are a result of increased competition from lower-priced renewable energies, increasing carbon prices, and EU energy reforms that could impact state subsidies for coal power.107 This ruling serves as a clear warning to other companies to be careful in disclosing climaterelated risks to their shareholders or risk being liable themselves. 34 Overall, the willingness of domestic courts to hear cases against corporations causing climate-related damage adds pressure for change in industry practices and implicates investment decision-makers. Indeed, as a result of growing pressure from civil society, governments and the judiciary, investment and capital markets have begun to feature climate change as a significant risk factor. Certain enterprises and analysts characterize the systemic nature of climate risk by exploring multiple avenues through which risk or threat of climate change materializes, highlighting ‘litigation risks’ in particular.108 While some might posit that markets will simply adjust themselves to accommodate 101 Adler, U.S. Climate Change Litigation in the Age of Trump: Year One, Sabin Center for Climate Change Law, Columbia Law School, 2018. http://columbiaclimatelaw.com/files/2018/02/Adler-2018-02U.S.-Climate-Change-Litigation-in-the-Age-of-Trump-Year-One.pdf accessed on March 20, 2020. 102 Mooney/Grandoni, New York City sues Shell, ExxonMobil and other oil companies over climate change, The Washington Post, January 10 2018 https://www.washingtonpost.com/news/energy-environment/wp/2018/01/10/new-york-city-sues-shell-exxonmobil-and-other-oil-majors-over-climate-change/? utm_term=.95770433c1d8. 103 County of San Mateo v Chevron Corp and others [2017] No 17 CIV 03222. 104 People of the State of California v BP PLc & Ors [2017] Case no: 3:17-cv-06012-WHA. 105 ClientEarth v Enea [2019] IX GC 1118/18. 106 Paragraph 1a, Ostrołęka C: Energa’s and Enea’s Board Members’ Fiduciary Duties to the Companies and Shareholders, ClientEarth Briefing: September 2018, https://www.documents.clientearth.org/wp-content/uploads/library/2018-09-20-clientearth-briefing-ostroleka-c-energa-and-enea-board-members-fiduciary-duties-to-the-companies-and-shareholders-ce-en.pdf accessed March 20, 2020. 107 World-first climate risk case launched over major coal plant in Poland, ClientEarth: 2018, https:// www.clientearth.org/world-first-climate-risk-case-launched-over-major-coal-plant-in-poland accessed 11 March 2020. 108 Cf Navigating Climate Risk, CERES, (September 2013). Available at: https://static1.squarespace.com/ static/57c0a650197aea879e3a81ef/t/58261ad3e6f2e16e929e1130/1478892253649/Navigating+Climate+Risk+Ceres’+Primer+for+Family+Offices.pdf (Last accessed on 24 April 2018); Climate Change Scenarios – Implications for Strategic Asset Allocation, Mercer (2011). Available at: https://www.ifc.org/wps/wcm/ connect/6b85a6804885569fba64fa6a6515bb18/ClimateChangeSurvey_Report.pdf?MOD=AJPERES (Last accessed on 24 April 2018).

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the new pressures and risk categories, for instance deciding liability for fiduciary duties owed to investments,109 more research is needed to uncover the influence of climate litigation on investment decision-making. Both public and private enterprises and institutional investors among others are placing priority on understanding and responding to climate litigation risks, including through changes in investment decisions.110 For example, the Task Force on Climate related Financial Disclosure,111 set up by the G20, following the Paris Agreement, recommended that corporates should disclose their climate-related financial risk alongside other financial and securities risks. This recommendation has been supported by the EU High Level Expert Group on Sustainable Finance,112 and the UK Green Finance Task Force113 both of which are looking to bring these recommendations into law in the next few years. In addition, shareholder activism, including shareholder resolutions requiring enterprise to reduce greenhouse gas emissions, to divest from fossil fuels, or to switch to clean energy, may be further shaping investment decision-making.114 State actions ranging from the introduction of climate laws, to the promotion of 35 collaborative policies to decelerate investment in obsolete fossil fuels such as coal, suggest States’ growing interest in decoupling economic development from emissions, with more participation from private sector, including investors. Such polices include encouraging investments in renewables, providing subsidies and scaling up funding for innovation in clean energy technologies, and other actions.115 A twenty-fold increase in legislation on climate change is reflective of the fact that the public in many countries supports and indeed drives this trend.116 While some may accuse courts of judicial overreach, the vast increase in climate litigation on all continents suggests that citizens and consumers in many countries expect the judiciary to hold governments, private and public enterprises accountable, in the absence of any other mechanism. Given the emerging prominence of litigation in these capacities, entities seeking to 36 minimize exposure to climate change litigation must adopt several core strategies. By setting ambitious climate-related goals, declaring them publicly, and implementing concrete steps in pursuit of these goals, entities project awareness of the importance of climate change and commitment to addressing the challenge. Transparent and bold displays of climate ambition may deter litigation. Entities, however, assume responsibility for following through on such targets, and litigation can be expected should these entities fall short of their promises. Additionally, clients could pursue divestment of fossil fuel-related and other climate-risk prone assets as a form of precaution to reduce exposure to litigation. Divestment refers to a politically influenced action of wealth 109

Barker et al., 6 Journal of Sustainable Finance and Investment 211. Barker/Winter, 32 Australian Environment Review 62. 111 Task Force on Climate Related Financial Disclosures, TCFD Knowledge Hub: 2019, https://www. fsb-tcfd.org/ accessed March 20, 2020. 112 Final report of the High-Level Expert Group on Sustainable Finance, European Commission: 31 January 2018, https://ec.europa.eu/info/publications/180131-sustainable-finance-report_en accessed March 20, 2020. 113 Greening Finance and Financing Green, Green Finance Institute: 2019, http://greenfinanceinitiative. org/workstreams/green-finance-taskforce/ accessed March 20, 2020. 114 Allen et al., Climate Change and Capital Markets, The Steyer-Taylor Center for Energy Policy and Finance, 2015. https://law.stanford.edu/wp-content/uploads/2015/07/Climate-Change-and-Capital-Markets-FINAL-05-13-2015.pdf accessed on 24 April 2018. 115 Cf UNEP Finance Initiative, Investment Grade Climate Change Policy: Financing the Transition to the Low Carbon Economy, 2011. Available at: http://www.unepfi.org/fileadmin/documents/InvestmentGradeClimateChangePolicy.pdf (Last accessed on 24 April 2018); CERES et al., Briefing Paper submitted to G7 and G20: ‘Governments Urged to Maintain Momentum on Climate Action’, (July 2017). Available at: https://www.ceres.org/sites/default/files/Briefing-Paper-for-G20.pdf (Last accessed on 24 April 2018). 116 Barker, supra (fn. 109). 110

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owners that could include government entities or private financial institutions, in withholding investments for moral reasons, in this case, for the environment-related risks associated with owning such investments.117 By divesting from fossil fuel-related investments, both individuals and groups will not only send a message to their shareholders of their environmental concern, but they will also be protecting their fiduciary duties. Finally, as climate-related risk disclosures are increasingly becoming a key component of many litigations launched against financial institutions and other private corporations, precaution could be taken by groups to be transparent and accurate in disclosing climate-related risk to stakeholders. 37 The trends in climate change litigation outlined in this section, and their implications for international markets more broadly, garnered significant attention during CoP25 in Madrid, including in the Climate Law and Governance Day symposium, where negotiators and senior officials from highly climate vulnerable countries and legal advisors to investors and the climate finance community, debated the implications for investment flows in relation to risk, liability and due diligence.118 Additionally, discussions on the interface of human rights and climate action pointed to the unique innovations of human rights law in protecting the fundamental interests of marginalized and climate vulnerable populations.119 Further attention was afforded to mechanisms for market-based collaborations by international financial institutions to align private sector investments behind the Paris Agreement, as well as legal instruments to compel banks, insurers, and investors’ facilitation of the global energy transition.120 38 Indeed, these topics remain highly relevant in ongoing negotiations to be held in at CoP26 in Glasgow, as States move to finalize outstanding modalities of the Katowice Rulebook, particularly those relating to markets and non-market instruments, finance, and loss and damage. Finally, further attention is needed in understanding the interlinkages between investment and other dimensions of the climate change regime to understand how these synergies may be leveraged in the developing case law.

IV. Innovations in investment law & policy related to clean energy, climate change and sustainable development 39

Further, and equally intriguing, several investment law innovations can be tracked in multilateral, bilateral and national policy in relation to clean energy and climate change. These innovations provide a framework to balance the protection of property rights with the protection of the environment. In recent years, important investment awards have been rendered on projects related to renewable energy and the environment, 117 Ansar/Caldecott/Tilbury, Stranded assets and the fossil fuel divestment campaign: what does divestment mean for the valuation of fossil fuel assets? (Ora.ox.ac.uk: 2013) https://ora.ox.ac.uk/objects/ uuid:f04181bc-8c4f-4cc1-8f01-cafce57975ae/download_file?file_format=pdf&safe_filename=2013.10.08_ SA_in_FF_Div_Campaign.pdf&type_of_work=Report accessed 2 January 2019. 118 CLGD 2019 Proceedings Report (Climate Law and Governance Initiative: 2019) http://www. climatelawgovernance.org/wp-content/uploads/2020/02/CLGD-2019-Proceedings-Report.pdf accessed March 20, 2020; “Legal innovations for Sustainable Investments and Resilient Oceans” (CoP25 Side Event; 2019); “From Policy to Action: how business and investors can reach climate neutrality” (CoP25 Side Event: 2019). 119 Human Rights and Climate Action, CoP25 Side Event: 2019, available at https://seors.unfccc.int/ applications/seors/attachments/get_attachment?code=K9JC4S8GIKKWJNR3EO6RGA80O707I0FP, accessed 20 March 2020. 120 Ensuring Paris Agreement Implementation through limiting finance for fossil fuels, CoP25 Side Event: 2019, available at https://seors.unfccc.int/applications/seors/attachments/get_attachment?code=UDJXHXY1E0TV9RU7N384W7G9DM51P53B, accessed 20 March 2020.

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underscoring the need for markets to reflect emerging concerns and trends. The issue with using investment law as a tool to combat climate change, however, is the way in which climate concerns are packaged in investment treaties and case law. In investment decisions, a measure to combat climate change is rarely dressed as such. Therefore, understanding how climate change protection occurs in the field of investment law means understanding how laws that do not explicitly mention climate change are nevertheless used to combat it.

1. Treaty & policy developments The trends in investment law indicate changes in legal practice in case law, model 40 Bilateral Investment Treaties (BITs) and the way treaties are made. Historically, the main types of clauses that form the meat of investment treaties were limited. Nowadays, several bilateral treaties are being negotiated and entering into force, including chapters and provisions of specific relevance to SDG 7 on access to affordable and clean energy and SDG 13 on bold action on climate change. Many other provisions in these treaties, among a growing collection of ‘next generation’ regional and bilateral trade and investment treaties being crafted this decade, also seek to contribute to various other targets of the 17 SDGs.121 At the same time, because these developments are more recent, there has been very little testing of these norms in treaties from a climate change and sustainability point of view by investment tribunals. However, modern BITs or new Free Trade Agreements (FTAs) very rarely fail to reference norms for climate change prevention. For instance, the Comprehensive Economic and Trade Agreement (CETA) between 41 Canada and the EU provisionally entered into force in 2017.122 It includes a chapter linking trade and sustainable development, in which States ‘recognise that economic development, social development and environmental protection are interdependent and mutually reinforcing components of sustainable development, and reaffirm their commitment to promoting the development of international trade in such a way as to contribute to the objective of sustainable development, for the welfare of present and future generations,’123 and also has related chapters on trade and the environment124 and on trade and labour.125 Several provisions are of direct relevance to clean energy and climate change, particularly in Article 22(1)(3) where States commit to ‘enhance enforcement of their respective labour and environmental law and respect for labour and environmental international agreements; [and to] promote the full use of instruments, such as impact assessment and stakeholder consultations, in the regulation of trade, labour and environmental issues and encourage businesses, civil society organisations and citizens to develop and implement practices that contribute to the achievement of sustainable development goals.’ Moreover, States affirm in Article 22(3)(2) that 121 Cordonier Segger, Athena’s Treaties: Crafting Trade and Investment Agreements for Sustainable Development, Oxford University Press, 2020. 122 For a list of the provisions that entered into force see: Canada Gazette, Vol 151(1), Order Fixing September 21, 2017 as the Day on which the Act Comes into Force, other than Certain Provisions, available at: http://gazette.gc.ca/rp-pr/p2/2017/2017-09-07-x1/html/si-tr47-eng.html. 123 Canada-European Union Comprehensive Economic and Trade and Agreement (CETA) signed October 30, 2016, provisionally entered into force on September 21, 2017, ch. 22, Trade and Sustainable Development, available at http://www.international.gc.ca/trade-commerce/trade-agreements-accordscommerciaux/agr-acc/ceta-aecg/text-texte/22.aspx?lang=eng. 124 Ibid. ch. 24, Trade and Environment, available at http://www.international.gc.ca/trade-commerce/ trade-agreements-accords-commerciaux/agr-acc/ceta-aecg/text-texte/24.aspx?lang=eng. 125 CETA, ch. 23 Trade and Labour, available at http://www.international.gc.ca/trade-commerce/tradeagreements-accords-commerciaux/agr-acc/ceta-aecg/text-texte/23.aspx?lang=eng.

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‘trade should promote sustainable development. Accordingly, each State shall strive to promote trade and economic flows and practices that contribute to enhancing decent work and environmental protection…’ Article 22(3)(3), highlights further the importance of assessing the potential economic, social and environmental impacts of possible actions under the treaty, taking account of stakeholder views. Each State ‘commits to review, monitor and assess the impact of the implementation of this Agreement on sustainable development in its territory in order to identify any need for action,’ also opening the possibility for joint assessments.126 42 Of direct relevance, in Article 24(9)(2), the States commit, consistent with their international obligations to ‘pay special attention to facilitating the removal of obstacles to trade or investment in goods and services of particular relevance for climate change mitigation and in particular trade or investment in renewable energy goods and related services.’ In addition, in Article 24(12)(1), the States prioritize ‘trade-related aspects of the current and future international climate change regime, as well as domestic climate policies and programmes relating to mitigation and adaptation, including issues relating to carbon markets, ways to address adverse effects of trade on climate, as well as means to promote energy efficiency and the development and deployment of low-carbon and other climate-friendly technologies; … trade and investment in environmental goods and services, including environmental and green technologies and practices; renewable energy’ and also ‘promotion of life-cycle management of goods, including carbon accounting and end-of-life management…’ They also undertake, at Article 24(10)(2)(a), ‘in a manner consistent with their international obligations to: (a) encourage trade in forest products from sustainably managed forests and harvested in accordance with the law of the country of harvest; (b) exchange information, and if appropriate, cooperate on initiatives to promote sustainable forest management, including initiatives designed to combat illegal logging and related trade…’ an innovation that if implemented to incentivize investment and trade, could deliver co-benefits for climate change.127 They seek ‘improved understanding of the effects of economic activity and market forces on the environment; and exchange of views on the relationship between multilateral environmental agreements and international trade rules.’ Taken together, these commitments suggest CETA’s potential to support the implementation of Article 2(1)(c) of the Paris Agreement on climate change under the UNFCCC and related provisions,128 as well as other accords that seek to promote climate action and sustainable development of renewable energy.129 To encourage implementation, at Article 24(13) States commit to take into account the activities of relevant multilateral environmental organisations, and establish a mechanism whereby the new Committee on Trade and Sustainable Development (CTSD) serves as a focal institution within the organisation for discussion, cooperation and implementation of these provisions. 126

See Gehring/Stephenson/Cordonier Segger, Journal of World Investment and Trade 17, 155. For further discussion see Cordonier Segger/Gehring/Wardell, REDD+ Instruments, International Investment Rules and Sustainable Landscapes in: Voight, Research Handbook on REDD+ and International Law. 128 See Cordonier Segger, Cambridge International Law Journal 5(2), 202; Cordonier Segger, Canadian International Lawyer 11(2), 124. 129 Although CETA does not explicitly mention reducing fossil fuel subsidies in the same way as, for instance, the EU-Singapore FTA, ch. 12, sec. C, & annex 12-A at art. 13.11(3). See Gehring/Cordonier Segger et al., ‘Climate Change and Sustainable Energy Measures in Regional Trade Agreements (RTAs): An Overview’ (2013) International Centre for Trade and Sustainable Development, Issue Paper No 3, available at https://www.ictsd.org/sites/default/files/downloads/2013/08/climate-change-and-sustainableenergy-measures-in-regional-trade-agreements-rtas.pdf. See also Green Invest, ‘Green Foreign Direct Investment in Developing Countries’ (2017) UN Environment Programme, available at http://ccsi. columbia.edu/files/2017/10/Green_Foreign_Direct_Investment_in_Developing_Countries.pdf. 127

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In Chapter 22, the States also emphasize that the rights and obligations outlined in the 43 labour and environmental chapters are to be taken into account by the States as part of an integrated approach on trade and sustainable development.130 This guides interpretation, for instance in the context of future investment disputes.131 The Vienna Convention requires that treaties are to be interpreted in light of their object and purpose,132 and the States’ objectives for the CETA encompass the promotion of sustainable development. In the treaty, States also reinforce the need for transparency,133 and commit to an ongoing dialogue on trade and sustainable development,134 creating a CTSD which will oversee the implementation of the environment and labour chapters.135 The CTSD can refer implementation to a Panel of Experts established to examine any concerns and provide recommendations for their resolution. If the final report of the Panel of Experts determines that a State has not conformed with its obligations, the States shall engage in discussions and shall endeavour, within three months of the delivery of the final report, to identify an appropriate measure or, if appropriate, to decide upon a mutually satisfactory action plan. Such provisions suggest that the approach of Europe and Canada has evolved from earlier trade and investment plus environment focus, into a more nuanced focus on cooperation and integrated commitment to incentivize trade and investment that will support sustainable development. This sends important signals to investors and other concerned parties that the treaty seeks to encourage climate-related trade and investment. Another example is the investment chapter of the Trans-Pacific Partnership Agree- 44 ment,136 which contains a clause on ‘Investment and Environmental, Health and other Regulatory Objectives’. This is a carve out which permits a State to adopt, maintain, or enforce any measure that it considers appropriate to ensure that ‘investment activity in its territory is undertaken in a manner sensitive to environmental… objectives’.137 This clause has gained heightened importance because it has been incorporated into the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) that entered into force on December 30, 2018.138 The CPTPP is a free trade agreement between Canada and 10 other countries in the Asia-Pacific region: Australia, Brunei, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam.139 The preamble of the CPTPP reaffirms the importance of environmental protection and sustainable development. However, the environmental objectives of the treaty are more specifically incorporated through Chapter 20 of the TPP which focuses on promoting investment in renewable energy and acknowledges that ‘transition to a low emissions economy requires collective action’ which should reflect domestic circumstances and capabilities of each State Party.140 130

CETA, supra (fn. 123), art. 22.1(2). Ibid. art. 29(17). 132 Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331, 8 I.L.M. 679, entered into force Jan. 27, 1980, 1. See Cordonier Segger, Canadian Journal of Comparative and Contemporary Law 3(1), p. 159. 133 CETA, supra (fn. 123). art. 22(2). 134 Ibid. art. 22(3). 135 CETA, supra (fn. 123), art. 26(2)(1)(g). 136 Trans-Pacific Partnership (TPP), signed 4 February 2016, ch. 9. 137 TPP, supra (fn. 136), ch. 9, art. 9(16). 138 Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), entered into force on December 30, 2018, available at https://www.dfat.gov.au/sites/default/files/tpp-11-treaty-text.pdf. 139 Ibid. 140 CPTPP, supra (f. 138), ch. 20, art. 20(15). See TPP, supra (fn. 136), ch. 20, Article 20(15), para. 2: ‘Areas of cooperation may include, but are not limited to: energy efficiency; development of cost-effective, low emissions technologies and alternative, clean and renewable energy sources; sustainable transport and sustainable urban infrastructure development; addressing deforestation and forest degradation; emissions monitoring; market and nonmarket mechanisms; low emissions, resilient development and sharing of information and experiences in addressing this issue.’ 131

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Further, through Article 20(4), the CPTPP emphasises that each State is committed to implement all multilateral environmental agreements to which it is a party.141 Consequently, there a clear commitment to fulfil the requirements of the Paris Agreement and respect all duties regarding action against climate change. This is bolstered by the States’ recognition in Article 20(3), that it is ‘inappropriate to encourage trade or investment by weakening or reducing the protection afforded in their respective environmental laws’. The States have resultantly agreed that they shall not weaken or reduce protection in their domestic environmental laws in order to encourage foreign investment.142 The impact this has, is that for the purpose of determining what an ‘expropriation’ is under the treaty, ‘[n] on-discriminatory regulatory actions by a State that are designed and applied to protect legitimate public welfare objectives, such as… the environment, do not constitute indirect expropriations, except in rare circumstances’.143 Expropriation clauses in the new BITs are increasingly being drafted in such a way that measures to ‘protect legitimate public welfare objectives including… environmental concerns, do not constitute expropriation’.144 46 Lastly, Article 9(10), paragraph 3(d)(iii) of the CPTPP also recognizes that States Parties have the power to impose conditions that foreign investments must fulfil, which are ‘related to the conservation of living or non-living exhaustible natural resources.’145 These conditions are permitted so long as they ‘are not applied in an arbitrary or unjustifiable manner, or do not constitute a disguised restriction on international trade or investment’.146 This provision could pave the way for States Parties to provide incentives for investments in renewable energy as a way to conserve the exhaustible natural resources and, consequently, combat climate change. 47 India has also signed various BITs in recent years.147 These new BITs are patterned on a model BIT that India unveiled in January 2016,148 comprising of an indicative 45

141 CPTPP, supra (fn. 138), ch. 20, art. 20(4), para. 1: ‘The Parties recognise that multilateral environmental agreements to which they are party play an important role, globally and domestically, in protecting the environment and that their respective implementation of these agreements is critical to achieving the environmental objectives of these agreements. Accordingly, each Party affirms its commitment to implement the multilateral environmental agreements to which it is a party.’ 142 CPTPP, supra (f. 139), ch. 20, art. 20(3), para. 6: ‘Without prejudice to paragraph 2, the Parties recognise that it is inappropriate to encourage trade or investment by weakening or reducing the protection afforded in their respective environmental laws. Accordingly, a Party shall not waive or otherwise derogate from, or offer to waive or otherwise derogate from, its environmental laws in a manner that weakens or reduces the protection afforded in those laws in order to encourage trade or investment between the Parties.’ 143 CPTPP, supra (fn. 138), ch. 9, Annex 9-B, para. 3(b), available at https://ustr.gov/sites/default/files/ TPP-Final-Text-Investment.pdf. 144 India-Lithuania Bilateral Investment Treaty (2011), entered into force 1 December, 2011 annex, para. 3. See also, CPTPP, supra (fn. 138), ch. 9, annex 9-B, para. 3(b), available at https://ustr.gov/sites/ default/files/TPP-Final-Text-Investment.pdf; Brazil-India Bilateral Investment Treaty (2020), signed on 25 January, 2020, art. 6(4); Agreement Between the Government of Canada and the Government of the People’s Republic of China for the Promotion and Reciprocal Protection of Investments (Canada-China Bilateral Investment Treaty), entered into force 1 October, 2014, annex B(10), para. 3; Australia-Peru Free Trade Agreement (2018), entered into force 11 February, 2018, annex 10(A), para. 3(b); ASEAN-Hong Kong Investment Agreement (2017), entered into force 17 June 2019, annex 2, para. 4. 145 CPTPP, supra (fn. 138), ch. 9, art. 9(10), para. 3(d)(iii), available at https://ustr.gov/sites/default/ files/TPP-Final-Text-Investment.pdf. 146 Ibid. 147 Brazil-India BIT, supra (fn. 144); India-Kyrgyzstan BIT (2019), signed on 14 June 2019; BelarusIndia BIT (2018), signed on 24 September, 2018. The only BITs that remain in force from the 2010s with India as a Party are the India-UAE BIT (2013), entered into force on 21 August, 2014; India-Lithuania BIT (2011), entered into force 1 December, 2011; and India-Latvia BIT (2010), entered into force 27 November, 2010. For details see https://investmentpolicy.unctad.org/international-investment-agreements/countries/96/india. 148 Model Text for the Indian Bilateral Investment Treaty, India, January 2016.

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document of the exact obligations India is willing to agree to. The preamble of the model BIT seeks to ‘align the objectives of investment with sustainable development and inclusive growth of the Parties’. Of particular relevance to clean energy and climate change, is Article 8(1) which seeks to ‘enhance the contribution of Investments to inclusive growth and sustainable development of the Host State’. Further, a number of BITs based on this model BIT have drafted fair and equitable 48 treatment clauses that can have a powerful impact in supporting green investments in clean energy and in the fight against climate change.149 For example, a footnote in the Indian model BIT notes that the requirement of ‘like circumstances’ implies a recognition that the host State might have legitimate reasons for distinguishing between investments including, but not limited to the actual and potential impact of the investment on third parties, the local community, or the environment. The Brazil-India BIT, signed on 25 January 2020 epitomizes the use of investment treaty concepts such as fair and equitable treatment (FET) to protect measures intended to combat climate change. Article 5 of the treaty recognizes that equal treatment ‘in like circumstances’ depends on the ‘totality of the circumstances, including whether the relevant treatment distinguishes between investors or investments on the basis of legitimate public welfare or regulatory objectives.’150 Such clauses permit States to recognize that energy that comes from a renewable source is not in like circumstances with energy that is not from a renewable source. Consequently, States are given a leeway to adopt ‘discriminatory’ policies that are favourable to clean energy and renewable resources even where they discriminate against investors in non-renewable energy. Another way investment treaties are being drafted to protect measures taken to 49 combat climate change is by including these measures under the garb of ‘general exceptions’. For instance, Article 9(8) in the Investment Chapter of the Australia-China FTA (2015) states that the FTA does not prevent a State from ‘adopting or enforcing measures… includ[ing] environmental measures relating to the conservation of living or non-living exhaustible natural resources.’151 This is of significance to the energy sector as it precludes investors from bringing claims against the State for measures intended to conserve fossil fuel resources by promoting alternative green technologies. Further, Article 22 of the Brazil-India BIT lists ‘Provisions on Investment and Environment, Labor Affairs and Health.’ It goes on to state that ‘nothing in this Treaty shall be construed to prevent a State from adopting, maintaining or enforcing any measure it deems appropriate to ensure that investment activity in its territory is undertaken in a manner according to labour, environmental and health law of that State, provided that this measure is not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction.’152 This clause, which is found in 149

India’s Model BIT, art. 4; Brazil-India BIT, supra (fn. 144), art. 5(2). Brazil-India BIT, supra (fn. 144), art. 5(2). 151 Australia-China FTA (2015), entered into force 20 December 2015. See art 9(8): ‘GENERAL EXCEPTIONS 1. For the purposes of this Chapter and subject to the requirement that such measures are not applied in a manner which would constitute arbitrary or unjustifiable discrimination between investments or between investors, or a disguised restriction on international trade or investment, nothing in this Agreement shall be construed to prevent a Party from adopting or enforcing measures: (a) necessary to protect human, animal or plant life or health; (b) necessary to ensure compliance with laws and regulations that are not inconsistent with this Agreement; (c) imposed for the protection of national treasures of artistic, historic or archaeological value; or – 90 – (d) relating to the conservation of living or non-living exhaustible natural resources. 2. The Parties understand that the measures referred to in subparagraph 1(a) include environmental measures to protect human, animal or plant life or health, and that the measures referred to in subparagraph 1(d) include environmental measures relating to the conservation of living or non-living exhaustible natural resources.’ 152 Brazil-India BIT, supra (fn. 144), art. 22(1). 150

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similar form in other BITs,153 including the Canada-China BIT (2012),154 indicates that States appear to be moving toward achieving investment protection through environmental norms and environmental protection through investment norms. For instance, States can incentivize specific types of investment like green investment under this clause because they are in effect protecting the environment when protecting specific types of investment like green investment. 50 In essence, rather than staying silent or ignoring challenges, treaty regimes increasingly and explicitly encourage and promote trade and investment for more sustainable energy development and are expected to respond to global concerns on climate change. Treaty regimes are doing this by recognizing that first, energy which comes from a renewable resource is not in ‘like circumstances’ with energy that does not. Consequently, measures intended to incentivize clean energy are not considered discriminatory against fossil fuel industries. Secondly, new BITs incorporate clauses which prohibit States Parties from lowering their environmental standards to incentivize investments. Thirdly, expropriation clauses in new treaty regimes provide explicit carve outs for measures intended to protect the environment. As a result, any measure taken to support green investment is increasingly not being considered as an ‘expropriation’. Lastly, certain modern treaties incorporate general exception clauses act as a carve out for ‘environmental measures’, which provide States with a justification for implementing measures in favour of green technologies to conserve exhaustible resources.

2. Investment treaty disputes The case law of international investment arbitrations has also significantly changed in the last decade with a trend toward the prioritisation of measures to combat climate change over the protection of investments. However, climate change protection in these decisions is often not packaged as such but is distilled from the protection of ‘measures’ taken to protect the environment and the general approach of tribunals adopting principles of international environmental law like the precautionary approach or the polluter pays principle.155 52 The trends in investment law decisions on matters pertaining to climate change, clean energy and sustainable development are so difficult to distil because of the inherent nature of international investment law and the lack of binding value of precedent. However, the portion of investment disputes with relevance for clean energy, climate change and sustainable development went from less than 1 % prior to this decade to over 20 % of the cases.156 The problem is that international investment law awards in the 2010s form a body of case law that is a mosaic – fractured with many patterns and 51

153

Australia-Hong Kong BIT (2019), entered into force 17 January 2020, art. 15. Canada-China BIT, supra (fn. 144), art. 33, para. 2: ‘Provided that such measures are not applied in an arbitrary or unjustifiable manner, or do not constitute a disguised restriction on international trade or investment, nothing in this Agreement shall be construed to prevent a Contracting Party from adopting or maintaining measures, including environmental measures…’ 155 The precautionary approach and the polluter pays principle in judicial decisions are of relevance to combat climate change because they provide a theoretical basis to reduce the amount of compensation granted to an investor when a measure imposed by a State on the investor, which is intended to combat climate change is held to be in breach of the State’s obligations under international investment law. 156 Viñuales, Foreign Investment and the Environment in International Law: The Current State of Play, in: Miles, Research Handbook on Environment and Investment Law, ch. 2, Forthcoming, available at http://www.ceenrg.landecon.cam.ac.uk/, accessed 12 March 2020. See generally, Cordonier Segger/Weeramantry (eds.), Sustainable Development Principles in the Decisions of International Courts and Tribunals, Routledge 2017, ch. 23–25. 154

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contradictions within its framework. Some of the decisions are unwilling to consider climate change or other environmental issues. Other cases have been very directly concerned with them. Take for instance, the view taken in Clayton/Bilcon v. Canada.157 This was a case 53 which involved the rejection of a project to develop and operate a quarry in Nova Scotia. After a preliminary approval, a panel was nominated to conduct an environmental impact assessment. In its final report, the assessment recommended that the project be rejected because it had a significant and adverse environmental effect on the ‘community core values’. The tribunal favoured the investor in this case and awarded compensation despite the immense loss of green cover that would have arisen from allowing the project. In its decision, the majority spoke rather contradictorily about how important it is to protect the environment against climate change but then went on to hold that there was a breach of the investment treaty despite the measure in question being used to prevent climate change. The tribunal rationalized that there could not be a decision that blocks an investment for environmental protection alone. The measure against climate change was seen as a mask for a hidden agenda (indirect expropriation) which was prohibited under the investment treaty.158 Such decisions have grave impacts on the fight against climate change, as can be 54 clearly seen in the decision of Unglaube v. Costa Rica.159 The State in this case was attempting to acquire a 75m strip of the investor’s property to develop a National Park. The developed park would add significantly to the green cover and biodiversity in the State. However, the tribunal decided the case on the basis of the earlier Santa Elena decision,160 quoting that: ‘Expropriatory environmental measures – no matter how laudable and beneficial to society as a whole – are, in this respect, similar to any other expropriatory measures that a state may take in order to implement its policies.’161 Consequently, a measure taken by a government to protect its green cover was not seen as being in consonance with international investment law. The tribunal viewed the measure adopted merely as a national measure governed by international law that affected the investment. It rationalized that a State cannot invoke its own national law as a justification to violate an international obligation162 – an obligation that arose through the treaty. It is very rare to find investment decisions that say environmental treaties trump 55 investment protection, although you do find the same when the cases are pleaded before human rights tribunals.163 One such example of an investment case pleaded before a human rights tribunal is the Yukos decision.164 This decision recognized that 157 William Richard Clayton, Douglas Clayton, Daniel Clayton and Bilcon of Delaware Inc. v. Canada, UNCITRAL, PCA Case No. 2009–04, Award on Jurisdiction and Liability of 17 March 2015. 158 Viñuales, The Environmental Regulation of Foreign Investment Schemes under International Law, in: Dupuy/Viñuales, Harnessing Foreign Investment to Promote Environmental Protection: Incentives and Safeguards, Cambridge University Press, 2013. 159 Marion Unglaube v. Costa Rica and Reinhard Unglaube v. Costa Rica, ICSID Cases nos ARB/08/1 and ARB/09/20, para. 216. 160 Compañía de Desarrollo de Santa Elena, S.A. v. Republic of Costa Rica, ICSID Case No. ARB/96/1, Award (Feb. 17, 2000). 161 Marion Unglaube v. Costa Rica and Reinhard Unglaube v. Costa Rica, para. 214. Unglaube v. Costa Rica, Award, ICSID Cases nos ARB/08/1 and ARB/09/20. 162 Vienna Convention on the Law of Treaties, art. 27. 163 Lagos del Campo decision, Inter-American Court of Human Rights, para. 141., available at https:// www.corteidh.or.cr/docs/casos/articulos/seriec_340_esp.pdf. 164 OAO Neftyanaya Kompaniya Yukos v Russia App 14902/04 (ECtHR, 20 September 2011) http:// hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-106308 accessed 22 December 2014 (Yukos, Merits).

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it is only natural when a State enters a treaty that it will do something to achieve the objects of the treaty. International law norms exist that entitle a State to adopt a measure such as the precautionary approach or polluter pays principle.165 The implication this decision has is that a State can implement a measure intended to combat climate change even if that measure affects a foreign investment as long as the measure is linked to or at the very least induced by the existence of an international obligation to combat climate change such as those arising from the Paris Agreement. 56 In more recent investment decisions of relevance to climate change, traditional concepts of investment law are being increasingly used to justify measures to combat climate change which might be at loggerheads with foreign investments. One way this occurs can be seen in Cortec Mining v. Kenya.166 The treaty in this case had a clause stating that the ‘protected object’ would only be an investment made in accordance with domestic law. This was a case of mining illegally in a protected area for minerals that were extremely important raw materials for developing solar cells. However, the government recognized the illegal nature of the mines and halted the activities of the foreign investor. The government successfully argued that the investment was not made in accordance with national law. Consequently, it used the framework of investment law (definition of a ‘protected investment’) to dress its environmental claim that its measures shutting down the mines were meant to prevent deforestation, protect the surrounding environment, and combat climate change. 57 This past decade has seen the boundaries of investment law being stretched to better accommodate environmental law. Actions to prevent climate change are being justified using the framework of investment law. Investment treaty clauses requiring compliance with domestic law are no longer limited to cases of corruption or violation of ‘international public policy’. It has now been widely interpreted to take into account environmental norms, such as public participation and environmental impact assessments.167 This is significant to combat climate change because it means investors will not have to take into account the displacement their investments might cause to the local public by their exploitation of resources.168 These decisions also have significant implications where an investor brings a claim for breach of investment treaty due to an unfavourable change in the law. In cases where the investment was initially made in accordance with domestic law but later became illegal,169 such decisions mean that the investor should take into account all that it has knowledge will likely happen in terms of legislative changes.

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Cordonier Segger/Weeramantry, supra (fn. 156). Cortec Mining Kenya Limited, Cortec (Pty) Limited and Stirling Capital Limited v. Republic of Kenya, (ICSID Case No. ARB/15/29). 167 Mamidoil Jetoil Greek Petroleum Products Societe S.A. v. Republic of Albania, ICSID Case No. ARB/ 11/24; Cortec Mining Kenya Limited, Cortec (Pty) Limited and Stirling Capital Limited v. Republic of Kenya, (ICSID Case No. ARB/15/29). 168 This includes displacement due to desertification, drought, or extreme temperatures that might arise due to certain kinds of unsustainable investments. Cordonier Segger/Weeramantry, supra (fn. 156) p. 111. 169 Plama Consortium Limited v. Republic of Bulgaria, ICSID Case No. ARB/03/24: The investor bought a former government factory that had a massive amount of contamination in the land. According to the domestic law, it was the owner even if he was not the polluter who had to pay for remediation. When the land was bought, a due diligence about the situation and the exposure of the targeted object was conducted. Thereafter, the existing regime on contaminated land suddenly changed. The question was: To what extent should the investor have known the law would change? The tribunal held that it should have known because the possibility of changing the law was being discussed in Congress when the due diligence was conducted. 166

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This past decade has also seen decisions that have expanded the understanding of the FET standard when applying it to the renewable energy sector. When an investor argues that a State’s change of the law was a violation of FET, the position is that if the change would be expectable for any diligent investor then the investor cannot be given investment protection. This is a determination of what is reasonable in terms of the expectation – the ‘legitimacy’ of the expectation. However, of relevance to measures taken to combat climate change, is the decision in Parkerings-Compagniet AS v. Republic of Lithuania.170 It was held that if two types of activities have two different carbon footprints, then they are not in ‘like circumstances’ for breach of FET.171 Climate change protection is increasingly being packaged so that investment arbitrations are being used to enforce the environmental obligations of host States. For instance, under an array of arbitrations on renewable energy, classical investment principles are being used to argue that host States are not doing enough to achieve their green obligations. Several interesting investor-state awards are also being issued, including an important award in relation to European renewable energy disputes, as well as awards related to counter-claims based on human rights violations and environmental damage. Moreover, among the still pending cases, in the two disputes the investors are challenging the governments’ decision to introduce restrictions on offshore oil and gas activity.172 Investment disputes relating to European renewable energy continue to emerge, with new claims also becoming public. In these cases, claimants had invested significantly in renewable energy programs which would arguably further global SDGs related to climate change mitigation (SDG 13) and clean, affordable energy (SDG 7). When these programs were substantially changed or administered in a manner contrary to treaty standards by governments that had committed to incentivize renewables, the investors then pursued their economic rights to enforce standards of conduct and government behaviour. To date there have been at least 40 cases brought against Spain in the wave of litigation by solar power and other eco-investors,173 and with many cases of important

170

Parkerings-Compagniet AS v. Lithuania, ICSID Case No. ARB/05/8, Award (11 September 2007). Parkerings-Compagniet AS v. Lithuania, ICSID Case No. ARB/05/8, Award (11 September 2007). 172 Rockhopper Exploration Plc, Rockhopper Italia S.p.A. and Rockhopper Mediterranean Ltd v. Italian Republic (ICSID Case No. ARB/17/14); Lone Pine Resources Inc. v. The Government of Canada, ICSID Case No. UNCT/15/2. 173 OperaFund Eco-Invest SICAV PLC and Schwab Holding AG v. Kingdom of Spain (ICSID Case No. ARB/15/36; EDF ENERGIES NOUVELLES (France) v. Kingdom of Spain; FREIF Eurowind Holdings Ltd v. Kingdom of Spain SCC, case No. 2017/060; Green Power K/S Y Obton A/S (Denmark) v. Kingdom of Spain, SCC, Case No. V2016/135; Greentech Energy System A/S, Foresight Luxembourg Solar 1 S.A.R.L., Foresight Luxembourg Solar 2 S.A.R.L., GWM Renewable Energy l S.P.A, GWM Renewable Energy ll S.P.A v. Kingdom of Spain; The PV Investors v. Spain, UNCITRAL; Charanne (the Netherlands) and Construction Investments (Luxembourg) v. Spain, SCC; Isolux Infrastructure Netherlands B.V. v. Spain, SCC; Eiser Infrastructure Limited and Energia Solar Luxembourg S.à.r.l. v. Spain, ICSID Case No. ARB/13/36; CSP Equity Investment S.à.r.l. v. Spain, SCC; RREEF Infrastructure (G.P.) Limited and RREEF Pan-European Infrastructure Two Lux S.à.r.l. v. Spain, ICSID Case No. ARB/13/30; Antin Infrastructure Services Luxembourg S.à.r.l. and Antin Energia Termosolar B.V. v. Spain, ICSID Case No. ARB/13/31; Masdar Solar & Wind Cooperatief UA v. Spain ICSID Case No. ABR/14/01. 171

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relevance for the security of renewable energy investments.174 Italy175 and the Czech Republic176 have each had at least seven disputes brought against them. Non-legal NGO commentators suggest that such cases, were they to be resolved for the full amounts claimed, would be worth over USD 9.5 billion.177 As such, these disputes are a warning for states looking to encourage foreign investment in their renewable energy sectors.178 The cases suggest that even in the absence of specific representations by the government, an investor may rely on the FET standard when subjected to fundamental changes in the state’s regulatory regime. Thus, governments ought to be careful not to alter their regulatory landscapes in the renewable energy sectors too drastically so as to unreasonably withdraw promised incentives, or fail to provide investors with the time necessary to meet new standards.179 Further, investors may even coax States into upholding their commitments under environment treaties by successfully arguing that a breach of a treaty within the framework of international environmental law such as the Kyoto Protocol would amount to a breach of FET because the State is expected to abide by its treaty obligations. 62 In the decisions in Charanne180 and Isolux181 in 2016, Spain was successful in defending its measures against the claims made by investors. These were followed 174 NextEra Energy Global Holdings B.V. and NextEra Energy Spain Holdings B.V. v. Spain, ICSID Case No. ABR/14/11; InfraRed Environmental Infrastructure GP ltd. et al. v. Spain, ICSID Case No. ABR/14/12; RENERGY S.à.r.l. v. Spain, ICSID Case No. ABR/14/18; Stadtwerke München GmbH, RWE Innogy GmbH et al. v. Spain, ICSID Case No. ARB/15/1; RWE Innogy GmbH and RWE Innogy Aersa S.A.U. v. Spain, ICSID Case No. ARB/14/34; STEAG GmbH v. Spain, ICSID Case No. ABR/15/4; 9REN Holding S.a.r.l v. Spain, ICSID Case No. ARB/15/15; BayWa r.e. Renewable Energy GmbH and BayWa r.e. Asset Holding GmbH v. Spain, ICSID Case No. ARB/15/16; Cube Infrastructure Fund SICAV and others v. Spain ICSID Case No. ARB/15/20; Matthias Kruck and others v. Spain, ICSID Case No. ARB/15/23; KS Invest GmbH and TLS Invest GmbH v. Spain, ICSID Case No. ARB/15/25; JGC Corporation v. Spain ICSID Case No. ARB/15/27; Cavalum SGPS, S.A. v. Spain ICSID Case No. ARB/15/34; E.ON SE, E.ON Finanzanlagen GmbH and E.ON Iberia Holding GmbH. v. Spain, ICSID Case No. ARB/15/35; SolEs Badajoz GmbH v. Spain, ICSID Case No. ARB/15/38; Hydro Energy 1 S.à r.l. and Hydroxana Sweden AB v. Spain, ICSID Case No. ARB/15/42; Watkins Holdings S.à r.l. and others v. Spain, ICSID Case No. ARB/15/44; Landesbank Baden-Württemberg and others v. Spain, ICSID Case No. ARB/15/45; Eurus Energy Holdings Corporation and Eurus Energy Europe B.V. v. Spain, ICSID Case No. ARB/16/4; Alten Renewable Energy Developments BV v. Spain, SCC; Sun-Flower Olmeda GmbH & Co KG and others v. Spain, ICSID Case No. ARB/16/17; Infracapital F1 S.à r.l. and Infracapital Solar B.V. v. Spain, ICSID Case No. ARB/16/ 18; Sevilla Beheer B.V. and others v. Spain ICSID Case No. ARB/16/27; Portigon AG v. Kingdom of Spain, ICSID Case No. ARB/17/15; Novenergia v. Spain, SCC; DCM Energy GmbH & Co. Solar 1 KG and others v. Kingdom of Spain, ICSID Case No. ARB/17/41. 175 VC Holding II S.a.r.l. and others v. Italy, ICSID Case No. ARB/16/39; ESPF Beteilingungs GmbH, ESPF Nr. 2 Austria Beteilingungs GmbH, and InfraClass Energie 5 GmbH & Co. KG v. Italy, ICSID Case No. ARB/16/5; Eskosol S.p.A. in liquidazione v. Italy, ICSID Case No. ARB/15/50; Belenergia S.A. v. Italy, ICSID Case No. ARB/15/40; Silver Ridge power BV v. Italy, ICSID Case No. ARB/15/37; Blusun SA, Jean-Pierre Lecorcier and Nichael Stein v. Italy, ICSID Case No. ARB/14/03; Greentech Energy Systems and Novenergia v. Italy, SCC 2015. 176 Antaris Solar and Dr. Michael Göde v. Czech Republic, PCA; Jürgen Wirtgen, Stefan Wirtgen, Gisela Wirtgen and JSW Solar (zwei) GmbH & Co. KG v. Czech Republic, PCA Case No. 2014-03; Natland Investment Group NV, Natland Group Limited, G.I.H.G. Limited, and Radiance Energy Holding S.A.R.L. v. Czech Republic; Voltaic Network GmbH v. Czech Republic, PCA; ICW Europe Investments Limited v. Czech Republic, PCA; Photovoltaik Knopf Betriebs-GmbH v. Czech Republic, PCA; WA InvestmentsEuropa Nova Limited v. Czech Republic, PCA. 177 Peterson, Investment Arbitration Report, February 7. 2018. 178 Power/Baker, Energy Arbitrations (2018), The European Arbitration Review 2018 (October 2017), available at https://globalarbitrationreview.com/insight/the-european-arbitration-review-2018/1148943/ energy-arbitrations. 179 See online http://www.wfw.com/wp-content/uploads/2017/06/Investor-succeeds-in-ECT-renewableenergy-arbitration-Eiser-v-Spain.pdf. 180 Charanne B.V. and Construction Investments S.a.r.l. v. Spain (SCC Case No. 062/2012). 181 Isolux Infrastructure Netherlands B.V. v. Kingdom of Spain (SCC Case No. 2013/153).

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shortly by the Eiser decision in 2017, however, in which the claimant was successful and was awarded USD 140 million in lost profits from their investment in a Concentrated Solar Power (CSP) project.182 The tribunal considered that the continuous regulatory changes approved by the Spanish Government, including the sudden cuts to the Feed-in Tariff (FIT) regime for the photovoltaic sector introduced by the Spalma-Incentivi Decree, were in violation of Article 10(1) of the Energy Charter Treaty (ECT).183 The Tribunal noted that although the ECT did not grant Eiser the right to expect a fixed legal regime, they did have legitimate expectation that regulatory measures would not destroy the value of their investment. The evidence showed that Spain had changed its regulatory regime in 2013/2014 in a drastic fashion, by adopting and implementing an entirely new regulatory approach, ‘applying it to existing investments in a manner that washed away the financial underpinnings of the claimants’ investments.’184 The new regime was based on different assumptions, and utilized a new and untested regulatory approach, all intended to significantly reduce subsidies to existing plants.185 In Mobil,186 the issue in dispute was similar in so far as Venezuela, the Respondent 63 Government had adopted an entirely new regulatory approach. The claimant had made investments in two extra-heavy crude oil projects located in the Venezuelan region of the Orinoco Oil Belt, under profit sharing agreements concluded with the Government. Prior to investing, in 1991, Venezuela introduced incentives such as a reduction in the tax rate and the rate of applicable royalties for this sector. However, in 2006, Venezuela imposed an extraction tax on all liquid hydrocarbons extracted from the ground. Royalty payments were also to be credited to the liability for extraction tax.187 Thereafter, claims arose out of Venezuela’s nationalization of the two oil projects in which the claimants had interests and subsequent disagreements concerning the amount of compensation owed to the investor.188 Of relevance here is the fact that the tribunal rejected the pre-expropriation FET claim brought due to the change in taxation by stating that the BIT’s FET provision did not protect foreign investors against tax measures. On the issue of compensation, the tribunal found that the nationalization was lawful but imposed a ‘just compensation’ of about USD 1.6 billion on Venezuela. The compensation amount is much closer to the valuations put forward by Venezuela in the arbitration, than the USD 16.6 billion requested by the Claimants.189 The Award was recognized in the Southern District of New York through an ex parte procedure, although in November of 2017 the order recognizing the award in New York was challenged and vacated.190

182 Eiser Infrastructure Limited and Energia Solar Luxembourg v Spain (Award 4 May 2017, Annulment Application registered 28 July 2017). 183 Eiser Infastructure Limited and Energia Solar Luxembourg S.A.R.L v. Kingdom of Spain, Award, ICSID Case No. ARB/13/36, April 26, 2017. 184 Eiser Infastructure Limited and Energia Solar Luxembourg S.A.R.L v. Kingdom of Spain, Award, ICSID Case No. ARB/13/36, April 26, 2017, para. 389. 185 Ibid. 389–393. 186 Mobil Cerro Negro Holding, Ltd., Mobil Cerro Negro, Ltd., Mobil Corporation and others v. Bolivarian Republic of Venezuela (ICSID Case No. ARB/07/27). 187 Mobil Cerro Negro Holding, Ltd., Mobil Cerro Negro, Ltd., Mobil Corporation and others v. Bolivarian Republic of Venezuela (ICSID Case No. ARB/07/27), Award dated 9 October 2014, para. 94–97. 188 After having increased their applicable royalty rate and income tax. 189 See Smith Freehills, ‘Exxon Mobil Is Awarded US$1.6 Billion in ICSID Claim against Venezuela – to Be Set off against Award in Parallel Contractual Arbitration’, (16 October 2014) .https://hsfnotes.com/ arbitration/2014/10/16/exxon-mobil-is-awarded-us1-6-billion-in-icsid-claim-against-venezuela-to-be-setoff-against-award-in-parallel-contractual-arbitration/ accessed 26 March 2020. 190 Judge Kaplan relied on two second circuits decisions that found that the Foreign Sovereign Immunities Act did not permit the use of summary ex parte enforcement procedures, and that the Petitioners were, instead, required to file a plenary action to enforce their ICSID award; see Mobil Cerro

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In another case, a decision was rendered for some of the claims against Czech Republic relating to its solar program. In Jürgen Wirtgen, Stefan Wirtgen, Gisela Wirtgen and JSW Solar (zwei) GmbH & Co. KG v. Czech Republic, the Czech Republic successfully defended its measures against further claims, despite arbitrator Gary Born’s strong dissent.191 In an attempt to encourage the production of electricity from renewable sources of energy, Czech Republic issued a Support Scheme providing incentives of a guaranteed FIT, originally for 15 and later 20 years and tax incentives. According to the claimants, they made investments in solar photovoltaic plants relying on the explicit guarantees and incentives in this scheme. In 2009 and 2010 Czech Republic amended the Support Scheme, the amendments consisted of 26 % solar levy and withdrawal of tax exemption. The Claimants argued that the amendments gave rise to breaches of their legitimate expectations, guaranteed inter alia under the FET clause. The tribunal held that there could only be a violation if legitimate expectations generated by specific commitments are affected.192 The majority, however, held that there was no separate guarantee of an absolute FIT price level, set independently of the guarantees of a payback of capital expenses and an annual return on investment. The tribunal held that the guarantees of return to investors as the groundwork of the renewable energy promotion regime had been complied with by Czech Republic. As such the majority held there was no breach of legitimate expectations: the claimants continued to receive a level of revenue that ensured a payback of capital expenses and a return on investment over a period of 15 years.193 In his dissent, Born rejected the majority’s finding. He argued that Czech Republic had provided a plain and unequivocal statutory guarantee for a fixed FIT for the duration of the investment and the claimants invested relying on this guarantee. The entire regime was a commitment guaranteed by the state and should therefore not be amended. 65 Further, in Mesa v. Canada,194 a dispute arose because the investor, a company engaged in the development of renewable energy projects in the wind sector was denied a successful bid in tenders under Canada’s FIT program for power purchase agreements due to transmission constraints. However, while the FIT program was ongoing, Canada entered into a Green Energy Investment Agreement (GEIA) with a consortium led by Samsung to establish and operate manufacturing facilities for wind and solar generation equipment in Ontario. The consortium was also given priority access to certain transmission capacity. When a claim for breach of FET was brought in this dispute, it was dismissed on the grounds that the measure of the government was merely a procurement that was exempted from the scope of NAFTA. Consequently, the government had preserved its right to pursue its policy objectives through procurement, even when they are discriminatory.195 Consequently, this indicates the State has police powers to choose what form of renewable energy is most suited to achieving its objectives. 66 In Naftrac v. Ukraine,196 the dispute was about a joint implementation mechanism under Article 6 of the Kyoto Protocol which allows a party to go to another country, develop a project and take credits back to its home country in terms of carbon credits. It 64

Negro, Ltd. v. Bolivarian Republic of Venezuela, 863 F.3d 96 (2d Cir. 2017) & Micula v. Gov’t of Romania, 2017 WL 4772435 (2d Cir. Oct. 23, 2017). 191 Jürgen Wirtgen, Stefan Wirtgen, Gisela Wirtgen and JSW Solar (zwei) GmbH & Co. KG v. Czech Republic, PCA Case No. 2014-03. 192 Ibid. para. 436–437. 193 Ibid. para. 469. 194 Mesa Power Group, LLC v. Government of Canada, UNCITRAL, PCA Case No. 2012-17. 195 Mesa Power Group, LLC v. Government of Canada, UNCITRAL, PCA Case No. 2012-17 para. 378. 196 Naftrac Limited v. National Environmental Investment Agency (Ukraine), PCA Arbitration (Optional Environmental Rules), Award (4 December 2012).

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was argued in this case that carbon credits are a form of protected investment. In Allard v. Barbados,197 there was investment into an ecotourism facility. The beautiful natural surroundings were being left to rot. The investor claimed breach of the Convention on Biological Diversity, the Ramsar Convention and international law. The investor claimed that Barbados had ‘failed to take reasonable and necessary environmental protection measures and, through its organs and agents, has directly contributed to the contamination of the Claimant’s eco-tourism site, thereby destroying the value of his investment.’198 This is a seminal case from the point of view of enforcing climate change obligations on States through international investment law. The success of this case for climate change and sustainability activists lies in its recognition that a claim to enforce international obligations arising from climate law could in fact be brought before the tribunal by an investor. Although the investor eventually lost out at the merits stage on facts, the award on jurisdiction is of direct relevance as the tribunal held that it did have jurisdiction to adjudicate the investor’s environmental claim. Finally, in addition to the renewable energy cases, Ecuador’s successful counterclaim 67 in Burlington Resources v. Ecuador for environmental damage has important implications for the consideration of climate change in investment disputes.199 Burlington Resources acquired and operated the exploration and development of oilfields in Ecuador. While the jurisdiction of the counterclaim was initially challenged, it was later agreed by the parties to adjudicate the counterclaim to limit parallel proceedings and multiple decisions.200 The tribunal found that national Ecuadorian law was applicable, notably as contained in several Ecuadorian Supreme Court decisions and that this contained a strict liability provision for environmental damage. The tribunal found damage at 40 sites across two oil fields and in its damages analysis assessed the cost of remediation. In total Ecuador was awarded USD 41 million for infrastructure and environmental damage.201 Notable in this case is the tribunal’s willingness to engage in a substantial analysis of Ecuadorian environmental law remediation obligations. There are numerous ways that can be used to argue that a measure to prevent climate 68 change is not in violation of the norms on investor protection. One way is to show that the measure should be read as part of the investment treaty. Another way is to argue that in any case, the police powers doctrine is a rule, not an exception: the State is well within its powers to adopt any measures necessary to prevent climate change. However, it appears that the future path to bring environmental protection within the fold of investment law lies in getting investors to invoke classical concepts of investment law to protect their own investments. The renewable energy cases discussed above are emerging as a forceful reminder of 69 the importance of an integrated and balanced approach to achieving sustainable development and indicate that investment law can act to frustrate but also to foster sustainable energy investment. Further, these cases raise questions about how to provide legal frameworks necessary to catalyse renewable energy investment, while avoiding unduly costly corporate subsidies, and allowing public policies to respond to changing circumstances in terms of government priorities, fiscal constraints, and market dynamics. They suggest that investment law is solely neither sword nor shield for 197

Peter A. Allard v. The Government of Barbados, UNCITRAL, PCA Case No. 2012-06. Peter A. Allard v. The Government of Barbados, UNCITRAL, PCA Case No. 2012-06, Award on Jurisdiction, 13 June 2014, para. 3. 199 Burlington Resources Inc. v. Republic of Ecuador, Decision on Counter-Claims, ICSID Case No. ARB/ 08/5, 7 February 2017. 200 Ibid. para. 6. 201 Ibid. 198

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measures to respond to climate change and to promote clean, renewable energy. Rather, in each dispute, there is a need to make a sound case.202

V. Conclusions Certain sustainable development progress is being made in international investment law, as international law and policy further prioritized the need to make finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development, as per the UNFCCC Paris Agreement, and to take bold action on climate change, as outlined in the global SDGs. New investment-related developments in trade, climate change, ozone and aviation instruments, as well as renewable energy and climate related investment arbitrations and domestic litigations, illustrate both progress and remaining gaps in climate law and governance. 71 More broadly, recent developments suggest that the world has reached the crossroads. All sectors of society can either contribute to the solutions, or become obsolete and increasingly, face litigation for the harm that they cause. Alongside domestic climate change litigation that is increasingly common, international law and policy has the power and the potential to either foster or frustrate prompt and effective action on climate change. There is an important opportunity to strengthen and bolster investment in climate, renewable energy, and as such, to support sustainable development. In this regard, it is critical to continually update international and domestic legal regimes to ensure that they are supportive of renewable, green and sustainable development in a carbon-constrained world. With multiple sustainable developments in international investment law and policy, as well as in climate law and policy, there is an opportunity to bolster investment in renewable energy, and climate mitigation and adaptation. It is hoped, taking the risks and urgency emphasized by the IPCC in its recent Report on need to keep warming below 1.5 degrees world-wide, that nations will seize the day. 70

202 For further discussion, see Cordonier Segger/Gehring, Overcoming Obstacles with Opportunities: Trade and Investment Agreements for Sustainable Development, in: Schill/Tams/Hofmann, International Investment Law and Development: Bridging the Gap, Edward Elgar, 2015; Cordonier Segger, Innovative Legal Solutions for Investment Law and Sustainable Development Challenges, in: Levashova et al., Bridging the Gap Between International Investment Law and the Environment, Eleven International Publishing, 2015. See also Cordonier Segger/Gehring, Climate Change and International Trade and Investment Law, in: Rayfuse/Scott, supra (fn. 64). And see Cordonier Segger/Gehring/Newcombe, Conclusions: Promoting Sustainable Investment through International Law, in: Cordonier Segger/Gehring/Newcombe, Sustainable Development in World Investment Law, Kluwer Law International, 2012.

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I. The Paris Climate Agreement and liability issues* Bibliography: Abbott, Orchestration: Strategic Ordering in Polycentric Governance, in: Jordan/ Huitema/ van Asselt/Forster (eds.), Governing Climate Change: Polycentricity in Action?, CUP 2018, p. 188; van Asselt, The Role of Non-State Actors in Reviewing Ambition, Implementation and Compliance under the Paris Agreement, 6 Climate Law 91 (2016); Bach, Human Rights in a Climate Changed World: The Impact of COP 21, Nationally Determined Contributions, and National Courts, 40 Vermont Law Review 561 (2016); Bodle/Oberthür, Legal Form and Nature of the Paris Outcome, 6 Climate Law 40 (2016); Bodle/Oberthür, Legal Form of the Paris Agreement and Nature of Its Obligations, in: Klein et al. (eds.), The Paris Agreement on Climate Change, OUP 2017, p. 91; Bodansky, The Legal Character of the Paris Agreement, 25 RECIEL 142 (2016); Bodansky, The Paris Climate Change Agreement: A New Hope?, 110 AJIL 288 (2016); Boom/ Richards/Leonard, Climate Justice: The international momentum towards climate litigation, 2016, https:// www.boell.de/sites/default/files/report-climate-justice-2016.pdf; Brunnée, COPing with Consent: Law-Making Under Multilateral Environmental Agreements, 15 Leiden Journal of International Law 1 (2002); Bulmer/ Doelle/Klein, Negotiating History of the Paris Agreement, in Klein et al. (eds.), The Paris Agreement on Climate Change, OUP 2017, p. 50; Burgers, Should Judges Make Climate Change Law?, 9 Transnational Environmental Law 55 (2020); Burkett, Loss and Damage, 4 Climate Law 119 (2014); Burkett, Reading Between the Red Lines: Loss and Damage and the Paris Outcome, 6 Climate Law 118 (2016); Chan/Ellinger/ Widerberg, Exploring national and regional orchestration of non-state action for a < 1.5°C world, 18 International Environmental Agreements 135 (2018); Colombo, Enforcing International Climate Change Law in Domestic Courts: A New Trend of Cases for Boosting Principle 10 of the Rio Declaration?, 35 UCLA Journal of Environmental Law and Policy 98 (2017); Crosland/Meyer/Wewerinke-Singh, The Paris Agreement Implementation Blueprint: A Practical Guide to Bridging the Gap between Actions and Goal and Closing the Accountability Deficit (Part 1), 24(3/4) Environmental Liability 114 (2016), quoted from: https:// ssrn.com/abstract=2952215; Crosland/Meyer/Wewerinke-Singh, The Paris Agreement Implementation Blueprint: Avenues to Blueprint Implementation (Part 2), 24(5) Environmental Liability (2016); quoted from: https://ssrn.com/abstract=3055523; Doelle, The Paris Agreement: Historic Breakthrough or High Stakes Experiment?, 6 Climate Law 1 (2016); Falk, ‘Voluntary’ International Law and the Paris Agreement, https:// richardfalk.wordpress.com/2016/01/16/voluntary-international-law-and-the-paris-agreement/ (16 January 2016); Faure/Peeters, Liability and Climate Change, Oxford Research Encyclopedias, Online Publication, Apr 2019, DOI:10.1093/acrefore/9780190228620.013.648; Franzius, Das Paris-Abkommen zum Klimaschutz als umweltvölkerrechtlicher Paradigmenwechsel, 15 Zeitschrift für Europäisches Umwelt- und Planungsrecht (EurUP) 166 (2017); Hänni, Menschenrechtsverletzungen infolge Klimawandels, Europäische GrundrechteZeitschrift (EuGRZ) 1 (2019); IPCC, Special Report: Global Warming of 1.5°C, 2018, https://www.ipcc.ch/ sr15/; Klein/Carazo/Doelle/Bulmer/Higham (eds.), The Paris Agreement on Climate Change. Analysis and Commentary, OUP 2017; Knox, Linking Human Rights and Climate Change at the United Nations, 33 Harv. Envtl. L. Rev. 477 (2009); Knox, The Paris Agreement As a Human Rights Treaty (June 6, 2018), in: Akande/ Kuosmanen/McDermott/Roser (eds.), Human Rights and 21st Century Challenges, OUP 2020, quoted from: https://ssrn.com/abstract=3192106; Lees, Responsibility and liability for loss and damage after Paris, 17 Climate Policy 59 (2017);Limon, Human Rights Obligations and Accountability in the Face of Climate Change, 38 Ga. J. Int’l & Comp. L. 543 (2010); Lord/Goldberg/Rajamani/Brunnée (eds.), Climate Change Liability, CUP 2012; Lyster, Climate justice, adaptation and the Paris Agreement: a recipe for disasters?, 26 Environmental Politics 438 (2017), quoted from: Sydney Law School Research Paper No. 16/104, https://ssrn. com/abstract=2883910; Mace/Verheyen, Loss, Damage and Responsibility after COP21: All Options Open for the Paris Agreement, 25 RECIEL 197 (2016); Nachmany/Fankhauser/Setzer/Averchenkova, Global trends in climate change legislation and litigation, 2017 update, Grantham Research Institute on Climate Change and the Environment, May 2017; Nachmany/Setzer, Global trends in climate change legislation and litigation: 2018 snapshot, Grantham Research Institute on Climate Change and the Environment, May 2018; Obergassel/ Arens/Hermwille/Kreibich/Mersmann/Ott/Wang-Helmreich, Phoenix from the ashes: an analysis of the Paris Agreement to the United Nations Framework Convention on Climate Change – Part I, 27 ELM 243 (2015); Rajamani, Ambition and Differentiation in the 2015 Paris Agreement: Interpretative Possibilities and Underlying Politics, 65 ICLQ 493 (2016); Rajamani, Guiding Principles and General Obligation (Article 2.2 and Article 3), in: Klein et al. (eds.), The Paris Agreement on Climate Change, OUP 2017, p. 131; Roberts, Comparative International Law: The Role of National Courts in International Law, 60 ICLQ 57 (2011); Rosso *

The authors would like to thank Michael Gerrard for valuable comments on this text.

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Part 3. State liability under international and European law Grossman, Climate Change and the Individual, 66 AJCL 345 (2018); Saiger, Domestic Courts and the Paris Agreement’s Climate Goals: The Need for a Comparative Approach, 9 Transnational Environmental Law 37 (2020); Savaresi, Human Rights and Climate Change, in: Honkonen/Romppanen (eds.), International Environmental Law-making and Diplomacy Review 2018, University of Eastern Finland – UNEP Course Series 18, 2019, p. 31; Savaresi/Auz, Climate Change Litigation and Human Rights: Pushing the Boundaries, 9 Climate Law 244 (2019); Setzer/Byrnes, Global trends in climate change litigation, London: Grantham Research Institute on Climate Change and the Environment and Centre for Climate Change Economics and Policy, London School of Economics and Political Science, 2019 snapshot; Setzer/Nachmany, National Governance, in: Jordan/ Huitema/van Asselt/Forster (eds.), Governing Climate Change: Polycentricity in Action?, CUP 2018, p. 47; Siegele, Loss and Damage (Article 8), in: Klein et al. (eds.), The Paris Agreement on Climate Change, OUP 2017, p. 224; Slaughter, The Paris Approach to Global Governance, https://scholar. princeton.edu/sites/default/files/slaughter/files/projectsyndicate12.28.2015.pdf (28 December 2015); Spash, This Changes Nothing: The Paris Agreement to Ignore Reality, 13 Globalizations 928 (2016); Streck/ Keenlyside/v. Unger, The Paris Agreement: A New Beginning, 13 JEEPL 3 (2016); Thompson, The Global Regime for Climate Finance, in: Carlarne/Gray/Tarasofsky (eds.), The Oxford Handbook of International Climate Change Law, OUP 2016, p. 137; UNEP, The Status of Climate Change Litigation – A Global Review, May 2017; https://www.unenvironment.org/resources/publication/status-climate-change-litigation-global-review; UNEP, Emissions Gap Report 2019, https://wedocs.unep.org/bitstream/handle/20.500.11822/30797/ EGR2019.pdf?sequence=1&isAllowed=y; Verheyen, Climate Change Damage and International Law: Prevention Duties and State Responsibility, Leiden: Martinus Nijhoff Publishers 2005; Viñuales, The Paris Climate Agreement: An Initial Examination, in C-EENRG Working Papers, no. 6, 15 December 2015, https://papers. ssrn.com/sol3/papers.cfm?abstract_id=2704670; Wewerinke-Singh, Remedies for Human Rights Violations Caused by Climate Change, 9 Climate Policy 224 (2019); Wewerinke-Singh/Doebbler, The Paris Agreement: Some Critical Reflections on Process and Substance, 39 UNSW 1486 (2016); Winter, Armando Carvalho and Others v. EU: Invoking Human Rights and the Paris Agreement for better Climate Protection Legislation, 9 Transnational Environmental Law 137 (2020); Yamineva, Climate Finance in the Paris Outcome: Why Do Today What You Can Put Off Till Tomorrow?, 25 RECIEL 174 (2016); Zahar, The Paris Agreement and the Gradual Development of a Law on Climate Finance, 6 Climate Law 75 (2016).

Contents I. Introduction ..................................................................................................... II. The Paris Agreement and the legal nature of its provisions ................ 1. The Paris Agreement – binding or not binding?................................ 2. Obligations in the main action areas ..................................................... a) Mitigation................................................................................................ aa) The mitigation target – solely nationally determined?.......... bb) Implementation of the reduction targets.................................. cc) The ambition gap and the budget approach ........................... b) Adaptation .............................................................................................. c) Loss and damage ................................................................................... aa) Exclusion of liability under Art. 8.............................................. bb) Examination of responsibility ..................................................... d) Finance .................................................................................................... 3. Compliance and enforcement.................................................................. III. The Paris Agreement in the courtroom .................................................... 1. Interplay between the international and national level ..................... 2. The Paris Agreement in domestic litigation......................................... 3. Rights-based litigation ............................................................................... a) The Paris Agreement in human rights litigation – where does it feed in?..................................................................................................... b) Case law................................................................................................... c) Conclusion .............................................................................................. 4. Adjudication in planning decisions........................................................ 5. Some general remarks: the importance of considering the national context........................................................................................................... IV. Conclusion and outlook ................................................................................

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I. Introduction The Paris Agreement1, the latest treaty under2 the United Nations Framework Con- 1 vention on Climate Change (UNFCCC)3, does appear quite ambitious and holistic in its approach. Not only does it set the goal to keep global warming to well below 2°C and pursue efforts to limit the temperature increase to 1.5°C above pre-industrial level.4 It also includes the issue of adaptation to the adverse impacts of climate change prominently as one of its main goals5 and addresses the issue of residual loss and damage in an alonestanding article6. Yet, the Paris Agreement was exposed to strong criticism for its lack of substantial binding obligations as well as strong enforcement mechanisms.7 In contrast to the top-down approach taken by its predecessor, the Kyoto Protocol8, the Agreement relies on “nationally determined contributions” (NDCs)9. Whereas under the Kyoto Protocol reduction targets were internationally negotiated and subsequently imposed obligations,10 contracting parties to the Paris Agreement autonomously decide on their respective contributions.11 With its soft target setting and its facilitative, non-confrontative compliance mechanism as well as with its expansion to all country parties the Paris Agreement was hoped – and did achieve – to attract more acceptance. To encourage states to do what is needed to comply with its goals the Agreement relies on a strong transparency framework, flanked by binding communication obligations, and a regular global stocktake to inform the parties about the actual state of the implementation of the Agreement. However, the communicated NDCs are far away from giving hope to reach the long-term temperature goal as set out in the Paris Agreement. Even if they were all implemented, they would lead us to a rise in temperature of 3.2°C.12 Further, while dealing with the issues of adaptation and loss and damage, the Paris 2 Agreement neither includes a comprehensive financing concept for adaptation nor addresses liability for loss and damage – both impacts that already occur and will rise in the decades to come due to greenhouse gas emissions contributed disproportionally by developed countries since the beginning of the industrialisation and affecting disproportionally developing country parties. While an accountability gap is apparent, the bottom-up approach, as adopted by the 3 Paris Agreement, does not render the Agreement totally unenforceable. The lack of 1 Paris Agreement (Paris, 13 December 2015; in force 4 November 2016) FCCC/CP/2015/10/Add.1, Annex, hereinafter also referred to as “Agreement” or “PA”. 2 On the relationship between the Agreement and the Convention cf Wewerinke-Singh/Doebbler, 39 UNSW 2016, 1486 (1497 et seq.). 3 United Nations Framework Convention on Climate Change (New York, 9 May 1992; in force 21 March 1994) 1771 UNTS 107. 4 PA, Art. 2.1(a). 5 Ibid., Art. 2.1(b), Art. 7. 6 Ibid., Art. 8. 7 Spash, 13 Globalizations 2016, 928; Falk, ‘Voluntary’ International Law and the Paris Agreement (16 January 2016). 8 Kyoto Protocol to the United Nations Framework Convention on Climate Change (Kyoto, 11 December 1997; in force 16 February 2005) FCCC/CP/1997/7/Add.1, hereinafter “KP”. 9 PA, Art. 3. 10 KP, Art. 3. 11 On the background to the Paris Agreement cf Bulmer/Doelle/Klein, in: Klein et al. (eds.), The Paris Agreement on Climate Change, Oxford University Press, 2017, 50. NDCs not only refer to mitigation measures, but include adaptation measures, finance, technology transfer as well as transparency, PA, Art. 3. 12 UNEP, Emissions Gap Report 2019, 13.

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legally binding substantive obligations stays in stark contrast to an ever-growing number of cases since13, with many of them relying directly or indirectly on the Paris Agreement. By relying on enforcement on the ground, the Paris Agreement does show considerable effect on litigation worldwide, especially on the domestic level. This chapter will examine what the Paris Agreement does provide with respect to the issue of liability. In a first step the Paris Agreement and the legal nature of its provisions are examined further (II.). In a second step the application of the Paris Agreement in domestic litigation is assessed (III.), followed by a conclusion and outlook of the Agreements’ impact in practice (IV.)

II. The Paris Agreement and the legal nature of its provisions 4

This part concentrates on the Paris Agreement as a treaty and the obligations it imposes on the parties. The Paris Agreement has already been subject to extensive analysis during the previous years, which will not all be reiterated here.14 After briefly addressing the question whether the Agreement is legally binding (1.) the focus will be on the main areas of action – mitigation, adaptation and loss and damage – and the cross-cutting issue of finance (2.). This assessment is led by the question whether the respective provisions contain substantial obligations giving rise to liability issues. Finally, the Paris Agreement’s approach to compliance is presented (3.).

1. The Paris Agreement – binding or not binding? The Paris Agreement is a binding treaty under international law. While some scepticism as to the legal form of the “Agreement” has been expressed at the beginning of the debate,15 the legal status of the Paris Agreement does not seem to be seriously contested anymore and there is no disagreement in this regard among the states.16 As a treaty, it does create binding obligations, with which the States must comply. Distinct from the question of the legal character of the Paris Agreement as such is the legal qualification of its provisions. These differ and do not all contain legally binding obligations. 6 The Paris Agreement consists of a mixture of mandatory and non-mandatory provisions. Whether a particular provision contains a mandatory obligation usually depends on the choice of the verb. Binding obligations are expressed by the most prescriptive formulation “shall” while the softer verb “should” introduces a recommendation. The character of non-normative verbs like “will” or “are to” is less clear, as both refer to the future and do not belong to the set of typical treaty language. “Are to” is arguably stronger in its prescriptiveness than the softer, more descriptive formulation “will” and can thus be perceived as indicating a duty.17 Furthermore the provisions vary 5

13 Setzer/Byrnes, Global trends in climate change litigation, 2019 snapshot; Nachmany et al., Global trends in climate change legislation and litigation, 2017 update. 14 Cf Klein et al. (eds.), The Paris Agreement on Climate Change, 2017; Bodansky, 110 AJIL 2016, 288; Doelle, 6 Clim Law 2016, 1; Obergassel et al., 27 ELM 2015, 243; Streck et al., 13 JEEPL 2016, 3. 15 Slaughter, The Paris Approach to Global Governance (28 December 2015); Falk, supra (fn. 7). 16 Bodansky, supra (fn. 14), 296; although within the US legal system the PA is treated as an “international agreement other than treaty”. For this qualification, which enabled the executive to enter the PA without approval of the Senate, it was decisive that it did not impose new substantial obligations upon the US, see Obergassel et al., supra (fn. 14), 248. 17 Bodle/Oberthür, in: Klein et al. (eds.), The Paris Agreement on Climate Change, 2017, 91 (98); different opinion expressed by Bodansky, 25 RECIEL 2016, 142 (145), who qualifies “will” as well as “are to” as sole statements by the parties about their goals, values or expectations.

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in whom they address. Some provisions apply to each party, creating individual obligations, others refer to “all parties” and still others do not have any subject. Overall, the structure of the Agreement divides between strong procedural obligations 7 with a mandatory character and more “soft” substantial obligations. The obligations addressing mitigation targets and action, adaptation support as well as loss and damage are expressed in soft terms, while the accompanying procedural requirements – communication of the NDCs or the global stocktake – are mandatory. This issue will be examined in more depth in the section below for each of the action areas. Before considering whether the provisions contain obligations which might give rise to liability it seems important to clarify that this assessment is restricted to the provisions of the Paris Agreement in question. If it is found that a provision falls short of prescribing a specific conduct, this does not mean that the respective conduct is not required under an obligation arising from other sources of international law.18

2. Obligations in the main action areas a) Mitigation. The provisions relating to mitigation are contained in Art. 4 of the 8 Agreement and can be divided into procedural and substantive provisions. It is remarkable that the binding obligations of conduct contained in this article – induced by the word “shall” – mainly relate to procedural requirements: Each party shall prepare, communicate and maintain successive NDCs that it intends to achieve.19 Each Party shall communicate its NDC every five years.20 In communicating their nationally determined contributions, all parties shall provide the information necessary for clarity, transparency and understanding.21 The provisions regarding the mitigation measures themselves – mainly the ambition of the target and its implementation – are formulated in less prescriptive language, thus being described as the “soft belly”22 of the Agreement. aa) The mitigation target – solely nationally determined? In contrast to the Kyoto 9 Protocol the mitigation target set by each party individually is nationally determined. But are there any requirements included in the Paris Agreement, any criteria against which the parties have to measure their targets, given that the main goal of the Agreement is to hold the increase of the global temperature to at least well below 2°C? In order to achieve the long-term temperature goal, parties “aim to” reach global 10 peaking of greenhouse gas emissions as soon as possible. They also aim to undertake rapid reductions thereafter, with the objective of achieving a balance between emissions and removals by sinks in the second half of this century.23 Even though these criteria, coupled with the explicitly mentioned underlying principle of equity, should serve to guide the parties when determining their mitigation targets and set a strong expectation, they lack a legally binding character. The same is true of the expectation of progression and the highest possible ambition 11 of the mitigation contributions. According to Art. 4.3 each Party’s successive NDC 18 On the issue of state liability for climate change under international law cf Wewerinke-Singh, State Responsibility, Climate Change and Human Rights Under International Law, 2018; Verheyen, Climate Change Damage and International Law: Prevention Duties and State Responsibility, 2005; see further Lord et al. (eds.), Climate Change Liability, 2012; Faure/Peeters, Liability and Climate Change, Oxford Research Encyclopedias, Apr 2019. 19 PA, Art. 4.2. 20 PA, Art. 4.9. 21 PA, Art. 4.8. 22 Viñuales, The Paris Climate Agreement: An Initial Examination, C-EENRG Working Papers No. 6, 2015, 1 (5). 23 PA, Art. 4.1.

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“will” represent a progression beyond the Party’s current NDC and reflect its highest possible ambition, reflecting its common but differentiated responsibilities and respective capabilities (CBDRRC) in the light of different national circumstances. The verb “will” is somewhat ambiguous and the interpretation of this provision and its legal implication differs. While some commentators understand this provision as setting out a requirement – an obligation of non-regression24 – others have interpreted “will” as a softener on the prescriptiveness.25 Due to the use of descriptive, rather than mandatory language, the provision falls short of introducing a mandatory obligation.26 However, it does create a strong good faith expectation. Also the provision in the following paragraph, Art. 4.5, according to which developed country Parties should continue taking the lead by undertaking economy-wide absolute emission reduction targets, is soft, using the verb “should”. 12 Thus, with regard to the substance of the NDCs the Paris Agreement falls short of introducing a clear and legally binding set of rules, against which the commitment of the parties can be measured. Neither the quality of the NDCs with regard to mitigation is specified in the Paris Agreement, nor is a corrective mechanism included, in the event of a lack of ambition in the parties’ mitigation commitments. Still, these provisions send a strong signal to the states as to a common understanding and expectation of the quality of the contributions. They might therefore unfold interpretative force. bb) Implementation of the reduction targets. The Paris Agreement does not impose a legally binding obligation on a party to implement or actually achieve its NDC.27 According to Art. 4.2 parties “shall” pursue domestic mitigation measures, with the aim of achieving the objectives of their NDCs. While they are arguably obliged to act (“pursue domestic mitigation measures”, an obligation which they already had under the UNFCCC28) the language does not require the parties to actually reduce their emissions as declared in their targets. However Art. 4.2 creates an expectation that parties “intend to” (first sentence) and “aim” (second sentence) to achieve the objectives of their contributions. 14 No liability arises – under the Paris Agreement – for individual states for not achieving their target as set out in its NDC. This might be different at the national level. The targets set out at the international level in the NDCs often correspond with emission reduction targets contained in national legislation. Depending on the specific provision and the national legal context these corresponding targets might be enforceable at the national level. 13

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cc) The ambition gap and the budget approach. How to deal with the discrepancy between the more or less clearly specified long-term temperature goal of at least 2°C above pre-industrial level, and the communicated mitigation targets of the parties, which lead to a projected warming of 3.2°C29 – provided all the governments meet their pledges? The ambition gap was known to the parties before the conference started, since almost all the states did communicate their pledges before the Conference of the Parties (COP) 21. Accordingly the parties explicitly recognized this shortfall, which is quantified in the decision adopting the Agreement, where the parties note with concern, 24

Viñuales, supra (fn. 22), 5. Bodle/Oberthür, supra (fn. 17), 98; id., 6 Clim Law 2016, 40 (49) “constructive ambiguity”. 26 Bodansky, supra (fn. 14), 306; Rajamani, 65 ICLQ 2016, 493 (500). 27 Viñuales, however, is of the opinion that they may qualify under international law as both a binding unilateral act and as a “subsequent agreement” interpreting provisions of the UNFCCC and the Paris Agreement, supra (fn. 22), 5. 28 UNFCCC, Art. 4.1(b), 4.2(a). 29 UNEP, supra (fn. 12). 25

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that the estimated greenhouse gas emission levels in 2025 and 2030 do not fall within least-cost 2°C scenarios.30 It is suggested that the target expressed as “well below 2°C” can be regarded as 16 binding because of its instrumental role and its indicative formulation,31 with the consequence that at least some parties fail to fulfil their requirements under both general international law and the Paris Agreement32. The wording of Art. 2.1.(a) however does not indicate a legally binding character of the provision. It states that this Agreement aims to strengthen the global response to climate change, including by holding the increase in temperature to at least well below 2°C. “By holding” is a factual description, which creates a strong expectation, but falls short of prescribing a certain behaviour. Taking recourse to the overall structure of the Agreement it becomes apparent that it is relying heavily on voluntary contributions of the parties to reach the shared goal combined with a strong and mandatory transparency framework. The approach of the Paris Agreement to deal with this well-known discrepancy is to encourage stronger contributions over time informed by the global stocktake and the enhanced transparency framework – but in a nationally determined manner. As Doelle puts it, the Paris Agreement does not provide for a top down assessment of the adequacy of individual contributions.33 The Agreement does, however, identify principles to guide the allocation of the 17 actions needed. The principles of equity34 and of CBDRRC35 are set out in Art. 2.2 of the Agreement as guiding principles and inform the implementation of the following operational provisions.36 Further, the UNFCCC – under which head the Paris Agreement is adopted – incorporates general principles of international law as the precautionary principle and the principle of equity as well as the right to sustainable development and the obligation to reduce emissions in accordance with the best available science37. Based on these principles Crosland et al. suggest the selection of a global carbon budget and its distribution among the states, which then can be used inter alia in litigation efforts to challenge the adequacy of a Party’s prevention measure.38 Such litigation, however, would have to find their legal basis in another set of law, might it be in domestic legislation or general international law. But the Paris Agreement can help to inform the respective obligations. b) Adaptation. Adaptation concerns states’ responses to the changing climate, which 18 threatens the lives of peoples as well as ecosystems worldwide. It aims at preventing loss and damage to occur. With the Paris Agreement adaptation reached a prominent role as being included as one of the main goals in the Agreement’s Art. 2. The significant need for adaptation and its interlinkage with mitigation is recognized in Art. 7.3. In line with the acknowledgement of human rights implications when taking action to address climate change in the treaty’s preamble, Art. 7.5 provides for a gender-responsive,

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Decision 1/CP.21, para 17. Winter, 9 TEL 2020, 137 (144). 32 Crosland, 24(5) Env. Liability 2016, 1 (5); Mace/Verheyen, 25 RECIEL 2016, 197 (212), argue that the 1.5°C goal forms part of the primary obligations of the parties. 33 Doelle, supra (fn. 14), 7. 34 PA, Preamble, Art. 2.2, Art. 4.1. 35 Ibid., Preamble, Art. 2.2, Art. 4.3, 4.19. 36 Due to the predictive verb “will” rather than the prescriptive “shall” and the lack of specifically identified actors or particular action they fall short of creating a legally binding obligation. Cf further on this issue: Rajamani, in: Klein et al. (eds.), The Paris Agreement on Climate Change, 2017, 131. 37 UNFCCC, Art. 3(3), 3(1), 3(4), 4(1). 38 Crosland et al., 24(3/4) Env. Liability 2016, 114; id., supra (fn. 32). 31

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participatory and fully transparent approach, taking into consideration vulnerable groups and communities as well as knowledge of indigenous peoples. 19 However, the obligations contained in Art. 7 are mainly procedural in nature. It is remarkable though that adaptation is established as a measurable goal, being included in the country’s NDCs39 and the global stocktake40 and thus being subject to scrutiny by the international community. Yet with regard to substantive legal obligations, although the required engagement in adaptation planning processes and the implementation of action is introduced by the verb “shall” in Art. 7.9, it is softened by the parenthesis “as appropriate”. 20 The outcome of the Paris Agreement has been acclaimed a “huge success for developing country parties” due to the increased importance that was placed on adaptation.41 By others the outcome was criticized for the very wide gap remaining between the rhetoric of the Agreement and the reality of the funding available to achieve these goals.42 The truth might lie somewhere in the middle. While the prominent recognition of the significant need for adaptation can count as an important first step in the right direction, it falls short to deliver the adequate response to this need considering the immense efforts and funding required to prevent loss and damage now and in the future.43 c) Loss and damage. No matter how ambitiously the international community is going to mitigate climate change, loss and damage are occurring already now, and will increase significantly in the future. This remains true even if the parties were able to keep the global temperature increase to 1.5°C above pre-industrial level.44 In absence of a definition of the term “loss and damage” in the UNFCCC or the Paris Agreement, “permanent and irreversible impacts of human-induced climate change” might serve as a working definition.45 It describes the impacts of extreme weather events and slowonset events, such as ocean acidification, desertification, and sea level rise as well as non-economic losses, such as the loss of cultural heritage and displacement.46 There might be no issue being more delicate in the negotiation process than loss and damage, pointing out so clearly to the pervading injustice that the ones who suffer the most are the ones who did contribute the least. The issue of loss and damage is of enormous concern, especially for the Alliance of Small Island States (AOSIS) and other vulnerable parties, some of them fear their very existence. On the other hand, the majority of the developed countries did oppose even the recognition of loss and damage, as they feared this could lead to liability and ultimately compensation claims.47 22 What came out of this heated discussion is a somewhat ambiguous compromise. The importance of averting, minimizing and addressing loss and damage is recognized in an alone-standing Article, Art. 8.48 This came to the price of the inclusion of a provision in the accompanying decision according to which Art. 8 of the Agreement does not involve or provide a basis for any liability or compensation.49 Instead the issue of loss and damage was addressed by the incorporation of the Warsaw International Mechan21

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PA, Art. 3. Ibid., Art. 7.14 in conjunction with Art. 14. 41 Obergassel et al., supra (fn. 14), 253. 42 Lyster, Sydney Law School Research Paper No. 16/104, 2017, 1 (14). 43 On the provisions with regard to financing for adaptation in developing countries see below, mn. 30. 44 IPCC, Special Report on 1.5. C, 2018. 45 Cf Mace/Verheyen, 25 RECIEL 2016, 197; for a general discussion of varying definitions see Burkett, 4 Clim Law 2014, 119. 46 Burkett, 6 Clim Law 2016, 118 (119). 47 Ibid., 122. 48 Cf Siegele, in: Klein et al. (eds.), The Paris Agreement on Climate Change, 2017, 224. 49 Decision 1/CP.21, para 51. 40

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ism for Loss and Damage associated with Climate Change Impacts (WIM).50 The WIM was set up in Warsaw in 2013 under the adaptation framework, and with a narrow mandate that excluded financial support.51 Established as an interim measure, lacking a long-term institutional foundation,52 the WIM is now brought under the guidance and authority of the Conference of Parties.53 Thus, funding for loss and damage remains one of the most pressing issues and is 23 not resolved by the Paris Agreement. The broad language in Art. 8, according to which parties should enhance action and support – coupled with the qualification “as appropriate” – does not contain any agreement on whether, not to speak about how, action and support should be financed. Neither is an explicit reference to loss and damage included in the finance section. Further, the issue of displacement, while being addressed under the WIM,54 is still waiting for a comprehensive and responsible approach. aa) Exclusion of liability under Art. 8. As previously stated, liability was explicitly 24 excluded in relation to loss and damage under Art. 8. But which effect does the exclusion-clause have for the issue of liability? The impact of this clause is not as definite as it might appear at a first glance. The exclusion-clause in COP Decision 1/CP.21 para 51 is contained in a COP 25 decision with no legally binding effect. While COP decisions may entail legal force55 this effect requires a “hook”56, a provision in the underlying treaty that authorizes the COP to issue legally binding decisions. This is not the case with regard to the exclusion clause, which was thought to serve for interpretative purposes.57 The arguably most important constraint with regard to its impact is found in the clause itself by only stating that it excludes liability stemming from Art. 8 of the Agreement – thus leaving the door open to liability claims on the basis of any other provision as well as of other sources of international law. The wording of the provision is quite clear in this regard. Further, a COP decision could hardly be the basis of an exclusion extending beyond the Agreement. Still, to exclude any unclarity in this regard several countries did express their understanding as to the limited reach of the exclusion clause in reservation clauses58. In sum, the provision does not close existing avenues for liability and compensation under international law and it does not prevent states from relying upon other parts of the Paris Agreement or the UNFCCC in establishing state liability for climate change.59 bb) Examination of responsibility. Another important differentiation is convin- 26 cingly emphasized by Lees, who argues that the decision only cuts off the discussion about liability and compensation and thus does not hinder but rather could encourage the examination of responsibility for loss and damage. She defines responsibility as the 50

PA, Art. 8.2. Doelle, supra (fn. 14), 10. 52 Burkett, supra (fn. 45), 121. 53 PA, Art. 8.2, Decision 1/CP.21 para 47. 54 COP Decision 1/CP.21, para 49. 55 For a general discussion on the law-making power of the COP see Brunnée, 15 LJIL 2002, 1. 56 Burkett, supra (fn. 45), 127. 57 Bodansky, supra (fn. 17), 148. 58 Declarations made under the Paris Agreement by i.a.the Marshall Islands, Nauru and Tuvalu, cf United Nations Treaty Collection 2016, https://treaties.un.org/Pages/ViewDetails.aspx?src=Treaty&mtdsg_no=XXVII-7-d&chapter=27&clang=_en#EndDec. 59 Cf further elaboration in Burkett, supra (fn. 45), 126 et seq.; Boom et al., Climate Justice: The international momentum towards climate litigation, 2016, 12 et seq.; Wewerinke-Singh/Doebbler, supra (fn. 2), 1505 et seq. 51

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relevant factual connection between the act and the ‘real-world’ outcome, whilst liability is a legal or other normative consequence of finding that such a connection exists, whereby the connection is treated as an a priori justification for that consequence.60 The Paris Agreement defines neither of these terms, but does differentiate between them. Responsibility is referred to in the preamble, whilst what is excluded in the accompanying decision is solely and explicitly liability and compensation. Thus, while liability and compensation under Art. 8 are off the table for now, there is nothing to hinder the further elaboration and allocation of responsibility under the Paris Agreement. Arguably, this might indeed be facilitated by the fact that – due to the accompanying decision – developed countries no longer fear that the establishment of such responsibility could directly lead to any payment.61 27 The discussion about allocation of responsibility and the role the Paris Agreement could play in this field has already started.62 Indeed, looking at the devastating impacts and costs climate change has already triggered with an average warming of 1°C above pre-industrial level and considering predictions for the future,63 it is self-evident that the discussion is not over, but has just begun. To face such discussion now and find a fair and long-standing solution in a cooperative manner might be the better choice for all involved parties and could certainly be more alluring than dealing with this issue in confrontative proceedings in other fora. d) Finance. Finance is a cross-cutting issue of relevance for all the action areas such as mitigation, adaptation and loss and damage. While finance has already been addressed partly in the sections of the specific action areas the respective and common provisions are set out here together. 29 The Paris Agreement does not contain any new binding obligation with regard to finance. Finance is addressed in Art. 9, which entails the obligation for developed country parties to provide financial resources to assist developing country parties with respect to both mitigation and adaptation – but only “in continuation of their existing obligations under the Convention”.64 The mobilization of additional finance, as foreseen in the progression clause in Art. 9.3.2, is expressed in soft terms (“should”). It is also not clear which part of such additional finance goes to supporting mitigation and which part to adaptation, as the provision of scaled-up financial resources should only “aim” to achieve a balance, according to Art. 9.4. Furthermore, by referring to “developed country parties” rather than to “each developed country party” these provisions represent collective rather than individual obligations.65 The only new obligation on developed country parties contained in the provision about finance is to communicate information on provided resources – though again qualified by the terms “as applicable” and “as available” in Art. 9.5. 30 Arguably, the Paris Agreement contains ambitiously framed language in the provisions on mitigation and adaptation. However, by lacking a corresponding counterpart in the section on finance, the Agreement still falls short of providing what is actually 28

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Lees, 17 Climate Policy 2017, 59 (63). Ibid. 62 Cf i.a. Crosland et al., supra (fns 32 and 38) 63 Cf reports from the International Panel on Climate Change (IPCC), esp. Special Report: Global Warming of 1.5°C, 2018. 64 PA, Art. 9.1. Developed country parties are required under the Cancun Agreements to provide 100 billion USD long-term finance per year by 2020 to developing countries. COP Decision, para 53 contains the intention of developed countries to continue this goal through 2025, by then setting a new goal from a floor of USD 100 billion per year. 65 Bodansky, supra (fn. 17), 147. 61

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needed for its successful implementation.66 Art. 4.5 on mitigation contains an obligation to provide support to developing country parties for the implementation of mitigation efforts, recognizing that enhanced support for developing country parties will allow for higher ambition in their actions. But despite its use of the mandatory “shall” this provision does not clarify who is obliged to provide for this support nor how this support shall look like. The situation is not any better in relation to adaptation funding. Parties recognize the 31 importance of support for and international cooperation in relation to adaptation efforts as well as the importance of taking into account the needs of developing country parties, especially those that are particularly vulnerable to the adverse effects of climate change.67 However the provisions on the essential financing are not anywhere near reflecting such an understanding. Again, whilst Art. 7.13 requires in mandatory wording (“shall”) for continuous and enhanced international support for developing country parties for their adaptation efforts, the provision does not specify who is bound by this obligation. As to loss and damage, it is not even mentioned in the provision on finance. Nor does 32 Art. 8 on loss and damage set out a clear provision on how this issue should be addressed financially. Parties are asked (“should”) to enhance understanding, action and support,68 including through the incorporated WIM, but this requirement is not combined with a substantive financial obligation. Instead the already soft formulation is further weakened by the qualification “as appropriate”. In the possible areas of cooperation and facilitation, insurance solutions are mentioned,69 but again, no regulation can be found on how this is going to happen and who is going to pay for insurance solutions for whose benefit. There is no proper system established with a strong framework on how the international community is going to deal with the already occurring and expected loss and damage in a comprehensive and adequate manner.

3. Compliance and enforcement In its overall structure the Paris Agreement is not built on clearly defined enforceable 33 substantive obligations, but rather on procedural requirements and transparency. Correspondingly the Paris Agreement relies on three elements to create political momentum for ambitious pledges and to ensure their achievement: the transparency framework70, the global stocktake71, and the implementation and compliance mechanism72. All three shall be implemented in a facilitative manner.73 The transparency framework and the global stocktake shall serve to inform the parties and facilitate the achievement of the long-term goals. The implementation and compliance mechanism shall consist of an expert-committee, functioning explicitly in a “non-adversarial” and “non-punitive” manner.74 In the event of disputes arising between the parties Art. 24 refers to the provisions of 34 Art. 14 of the UNFCCC. The dispute settlement clause provides for the submission of a 66 Cf Yamineva, 25 RECIEL 2016, 174; Zahar, 6 Clim Law 2016, 75; Thompson, The Global Regime for Climate Finance, in: Carlarne/Gray/Tarasofsky (eds.), The Oxford Handbook of International Climate Change Law, 2016, 137. 67 PA, Art. 7.6. 68 PA, Art. 8.3. 69 PA, Art. 8.4.(f). 70 PA, Art. 13. 71 PA, Art. 14. 72 PA, Art. 15. 73 PA, Art. 13.3, Art. 14.1, Art. 15.2. 74 PA, Art. 15.2.

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dispute to the International Court of Justice or an arbitration tribunal, if accepted by both parties, but this clause has never been applied. 35 The Agreement’s approach to advance compliance is through shining light on the countries’ successes and shortfalls. This approach does not only serve to create pressure on the international level; it also enables domestic forces to put pressure on their governments. “This national pressure can come in many forms, including domestic legal action to hold national governments accountable for their international promises.”75

III. The Paris Agreement in the courtroom 1. Interplay between the international and national level At a first glance the Paris Agreement does not seem likely to attract litigation76 worldwide. It lacks legally binding substantive provisions, as examined in the previous section. Plus, as an international treaty it does not confer subjective rights to citizens, which could then be enforced. And still, it can be argued that the Paris Agreement has triggered a whole new wave of litigation worldwide, the vast majority taking place before domestic courts. Not only did the coming into force of the Agreement draw attention to the topic and coincide with a remarkable increase in cases addressing climate change since.77 Many litigants do expressly refer to the Paris Agreement in making their cases, relying on its provisions in their argumentation. 37 The application of the Paris Agreement in domestic litigation corresponds with its overall structure and purpose. Heavily relying on a bottom-up approach accompanied by mainly procedural top-down elements,, the Paris Agreement is based on the presumption of being enforced at the national level, as it attempts to engage several layers of government as well as non-state actors.78 This enforcement can take the form of litigation. And while not providing claimants with substantive provisions they could directly rely on the Agreement does empower litigation. First, the Agreement provides for valuable information that can be used in litigation through the transparency framework and the global stocktake. Second, while not allocating a budget or prescribing reduction targets, the Agreement does define criteria and principles which can be applied for testing the adequacy of national mitigation measures. Third, the NDCs on the international level are generally mirrored in domestic legislation,79 which in turn can be invoked or relied upon in litigation80. Furthermore, the Paris Agreement provides a legal and political context in which the litigants can frame their case. It enables citizen to articulate more precisely and forcefully concerns about the ambition gap between current policy and the policy needed to achieve the mitigation and adaptation objective as enshrined in the treaty.81 Litigation 36

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Bach, 40 Vermont Law Review 2016, 561 (581). The Sabin Center for Climate Change Law provides two comprehensive databases on U.S. and nonU.S. climate change litigation: http://climatecasechart.com/. 77 Setzer/Byrnes, supra (fn. 13). 78 Cf PA, Preamble; Decision 1/CP.21, para 110–114, 121, 122; cf van Asselt, 6 Clim Law 2016, 91; Chan/Ellinger/Widerberg, 18 International Environmental Agreements 2018, 135. The new magic word is “orchestration”, cf Abbott, in: Jordan et al. (eds.), Governing Climate Change: Polycentricity in Action?, 2018, 188. 79 According to Nachmany/Setzer, Global trends in climate change legislation and litigation: 2018 snapshot, Grantham Research Institute on Climate Change and the Environment, May 2018, all Paris Agreement signatories or ratifiers have at least one law addressing climate change or the transition to a low-carbon economy. 80 Bach, supra (fn. 75), 566. 81 UNEP, The Status of Climate Change Litigation – A Global Review, May 2017, 8. 76

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tests the compatibility of particular actions or inactions with the Agreement. People do demand that their governments’ politically easy statements about rights and objectives must be backed up by concrete, and sometimes politically difficult measures.82 This part examines how the Paris Agreement can be fruitfully applied in litigation 38 before domestic courts. Acknowledging that there have been first attempts to invoke the Paris Agreement at an international level – for instance in a communication before the United Nations Committee on the Rights of the Child83 – the vast majority of the cases can be found at the national level, raising distinct questions on how the Agreement as an international treaty can feed into domestic adjudication. After some general considerations on the application of the Paris Agreement in domestic litigation (2.) two strands of cases are examined further: cases brought under human rights or constitutional law (3.) and administrative law cases in the planning area (4.) This part will then close with some concluding remarks on the importance of the national legal context when assessing the Paris Agreement’s role in climate change litigation (5.).

2. The Paris Agreement in domestic litigation The climate crisis cannot be resolved at the international level alone. This is 39 recognized by the Paris Agreement as well.84 While people feel that the governments do not deliver what is needed at the international level, they approach national courts. In contrast to the first wave of climate change litigation, which was more narrowly 40 focused on domestic provisions, the current wave of national litigation increasingly relies on international norms and data developed via the UNFCCC and IPCCC when arguing their case under domestic laws.85 National courts do play a double role in climate change litigation: they may act both as law enactors and law creators.86 Litigation might aim at filling a governance gap, where no comprehensive climate policy or legislation is in place. In other cases litigation acts to enforce the implementation of existing laws and policies. The claimants seek to bolster their case by arguing for an interpretation of national laws and policies in line with states international obligations under the Agreement.87 International law is predominantly law between the states – states being the subject of 41 obligations and rights towards other nation states. International law thus can hardly be enforced by citizens. It does not confer subjective rights to its citizens – with human rights law being the exception. For domestic litigation to be able to take recourse to obligations stemming from the Paris Agreement a constellation within the domestic legal system is needed, that allows for international law to be considered.88 Two distinct types of cases can be found here: human rights-based litigation and cases resting on national administrative law. With regard to the former human rights law might act as a “gap filler” to provide remedies, where other areas of law do not.89 Claimants argue that the insufficient action of a specific state is violating their rights, using the Paris Agreement to give content to the duty to protect. In the latter kind of proceedings 82

Ibid., 9. Petition to the UN Committee on the Rights of the Child, Sacchi et al. v. Argentina et al. (2019). 84 Supra (fn. 78). 85 Bach, supra (fn. 75), 582. 86 Influential work on the role of domestic courts in international law has been done by Roberts, 60 ICLQ 2011, 57; applied to the context of climate change by Setzer/Nachmany, in: Jordan et al. (eds.), Governing Climate Change: Polycentricity in Action?, 2018, 47 (56); cf further Colombo, 35 UCLA Journal of Environmental Law and Policy 2017, 98, and Saiger, 9 TEL 2020, 37. 87 Saiger, ibid., 38 et seq. 88 Ibid., 50. 89 Savaresi/Auz, 9 Clim Law 2019, 244. 83

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plaintiffs argue that a specific infrastructure project is not compatible with the obligations under the Paris Agreement as it contravenes the Agreements’ goals. 42 The cases presented below are different in several regards. They seek different remedies, under different types of national laws, some based on human rights law, some on domestic climate change legislation or administrative law. What they do have in common is their strategy: using international climate change norms to hold individual countries accountable through their domestic courts.90

3. Rights-based litigation a) The Paris Agreement in human rights litigation – where does it feed in? The devastating impact of the changing climate on human rights is broadly recognized and human rights bodies have been engaged in identifying human rights obligations with regard to climate change.91 Claims based on alleged human rights violations coincide with the internationally increasing prominence of the linkage between human rights and climate change, including the reference to human rights in the Paris Agreements’ preamble.92 The advantages of taking a human rights approach to the matter of climate change are, as Savaresi points out, that it allows to translate climate change concerns in terms of obligations owed directly to individuals and thus enables access to remedies that may not otherwise be available.93 44 The Paris Agreement does not constitute any new human rights obligations – it refers to “respective” obligations, which each state may already have under national, regional or international law.94 This does not taint the Paris Agreements reputation as a door-opener for human rights. The former UN Special Rapporteur on Human Rights and the Environment John Knox even called it a “human rights treaty” for being the first environmental agreement to recognize human rights obligations as an integral element of the regime it establishes.95 He analysed the Paris Agreement as to its consistency with climate-change related human rights obligations and concludes that while the Agreement is generally consistent with these obligations, the states must strengthen their commitments in order to completely fulfil them.96 With the pledges so far on the table, states will not come close to meeting the 1.5°C target set by the Paris Agreement and fall short of their collective obligation to cooperate to mitigate climate change.97 From a human rights perspective, he concludes, it is necessary not only to implement the current commitments, but also to strengthen these in order to meet the target set out in Art. 2 of the Paris Agreement.98 45 The question remains: what are the obligations for a specific country? In light of the impacts of climate change and its human cause it is apparent that states have an obligation to protect their citizens against the adverse effects of climate change on 43

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Bach, supra (fn. 75), 566. Cf i.a. OHCHR, Mapping Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment: Focus Report on Human Rights and Climate Change, 2014; OHCHR, Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, A/HRC/31/52 (2016). 92 Peel/Osofsky, 7 TEL 2018, 37 (39 et seq.). 93 Savaresi, Human Rights and Climate Change, in: Honkonen/Romppanen (eds.), International Environmental Law-making and Diplomacy Review 2018, 2019, 31 (33); see also Knox, 33 Harv. Envtl. L. Rev. 2009, 477; Limon 38 Ga. J. Int’l & Comp. L. 2010, 543; Rosso Grossman, 66 AJCL 2018, 345. 94 As not all parties have ratified human rights treaties, the Paris Agreement cannot serve as a means to introduce human rights obligations which parties would not have otherwise. See Savaresi, ibid., 37 et seq. 95 Knox, The Paris Agreement As a Human Rights Treaty, in: Akande et al. (eds.), Human Rights and 21st Century Challenges, 2020, quoted from: https://ssrn.com/abstract=3192106. 96 Ibid., 2. 97 Ibid., 16. 98 Ibid., 20. 91

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human rights.99 Less obvious is indeed, how exactly those duties look like. In general, states have a broad discretion in terms of policy choices on how to fulfil a specific duty, especially when weighing competing interests, such as environmental protection and economic development. However, their discretion is not unlimited. Among the factors that have been identified by human rights bodies as relevant are procedural factors, but also whether the end result complies with the national and international environmental standards and laws adopted by the states.100 Non-compliance with obligations of conduct as contained in the Paris Agreement, including with regard to taking measures aiming to prevent global warming in excess of the long-term temperature goal, might become relevant in the context of human rights violations.101 b) Case law. The most prominent case when it comes to the enforcement of climate 46 policies by the courts is the Dutch case known by the name of the litigating NGO “Urgenda”102. The issue was the adequacy of the Dutch greenhouse gas emission reduction target, which the plaintiffs perceived as not being ambitious enough. The Supreme Court of the Netherlands did confirm in its final judgment in December 2019 the finding of the two previous instances, namely that the Dutch state is under an obligation to reduce emissions originated from Dutch soil by at least 25 % by the end of 2020. The case was directly grounded on human rights as enshrined in the European Convention of Human Rights. Remarkably, the Court embraced the idea of a global carbon budget103 and found that the Netherland is obliged to contribute its “fair share”. The Court drew on each state’s obligation to take the necessary measures under the UNFCCC as reiterated by the Paris Agreement,104 both based on the individual responsibility of states105. Having to define a specific obligation in terms of a reduction target, the Court referred to soft law. Following the case law of the European Court of Human Rights the court found that law agreements and rules, which are not binding in and of themselves may play a role in defining a specific obligation.106 Less successful so far, but still valuable with regard to the Paris Agreement’s 47 application in national litigation is a lawsuit brought in Ireland. Friends of the Irish Environment challenged the country’s national mitigation plan on the basis of the irish Climate Action and Low Carbon Development Act.107 The plan lacked substantial reduction goals in the short- and medium-term and was thus, according to the plaintiffs, ultra-vires the Act, because this would constitute a breach of the rights under the Constitution and Convention. When arguing that the plan infringed individual rights, the plaintiffs referred to the states’ commitment under the UNFCCC to achieve the stabilisation of greenhouse gas concentrations in the atmosphere at a level that will prevent dangerous anthropogenic interference with the climate system, specified by the Paris Agreements’ long-term temperature goal.108 The Supreme Court granted leave to the applicant to appeal the High Court’s dismissal.109 99

Ibid., 13. Ibid., 12. 101 Hänni, EuGRZ 2019, 1 (10). 102 Supreme Court of the Netherlands, 19/00135, NL v. Urgenda, Judgment 20 December 2019. 103 Ibid., para 4.6. 104 Ibid., para 5.7.3, 5.7.4. 105 Ibid., para 7.3.2. 106 Ibid., para 6.3. 107 The High Court, 2017 No. 793 JR, Friends of the Irish Environment CLG v. Government of Ireland et al., Judgment 19 September 2019. 108 Ibid., para 18. 109 Supreme Court, IESCDET 13, Friends of the Irish Environment CLG v. Government of Ireland et al., Determination 13 February 2020. 100

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The People’s Climate Case110 challenges European legislation for not being ambitious enough in its reduction targets, invoking fundamental rights and international law. When examining the calculation and allocation of greenhouse gas emission budgets, the plaintiffs draw on the long-term temperature goal of the Paris Agreement which they argue sets a binding upper temperature limit. The Paris Agreement is also invoked for the allocation of the remaining budget with its principles of equity and CBDRRC.111 After being dismissed by the European General Court, the case is at the time of writing pending on appeal before the European Court of Justice. 49 The Paris Agreement is not only invoked in rights-based litigation with the aim to establish more ambitious greenhouse-gas reduction targets. A group of young people in Colombia did achieve a legal victory in a lawsuit aimed at the reduction of deforestation in the Colombian Amazon. They relied on the government’s obligation to reduce deforestation both under the Paris Agreement and under national law.112 Not finally decided yet is the petition of a coalition of environmental groups in Norway, which challenges the licensing decision for petroleum activities in the Barents Sea. They argue that the decision was contrary to the right to a healthy environment as enshrined in the Norwegian Constitution, which must be interpreted in light of the Paris Agreement.113 48

c) Conclusion. How exactly the Paris Agreement feeds in varies with the exact legal basis the claimants rely on, as well as the particular constitutional framework, the role of the courts in the respective jurisdiction and the relief the claimants are seeking. It is also to be kept in mind that these kind of cases still constitute a relatively new phenomenon, with many cases not being finally decided yet. While claimants definitely draw upon each other’s experiences – as courts do too when deciding their cases114 – they may nonetheless try different lines of reasoning. 51 While the Paris Agreement does not include a specific reduction obligation – which would specify the obligation of the state and could be enforced by its citizens – it does provide a framework that claimants draw upon in several regards. By setting the longterm temperature goal well below 2°C, preferably 1.5°C, the Paris Agreement specifies what at least states are asked for, setting out a minimum standard for assessing compliance with human rights.115 Further the underlying budget approach is embraced, at least by some courts. Moreover, the Paris Agreement provides a set of criteria for the allocation of the remaining budget – namely the principles of CBDRRC and equity – which is taken up by the courts when deciding their cases. 50

4. Adjudication in planning decisions 52

The second angle of the application of the Paris Agreement in national jurisdiction takes place in administrative law – an area of law that traditionally does not have the reputation of being as exciting and innovative as the vibrant world of human rights law. 110 Carvalho et al. v. European Parliament et al., Case T-330/18, Application 24 May 2018; cf for more information: https://peoplesclimatecase.caneurope.org/documents/. 111 Winter, supra (fn. 31). 112 Supreme Court of Colombia, STC4360-2018, Future Generations v. Ministry of the Environment et al., Judgment 05 April 2018. 113 Borgarting Court of Appeal, 18-060499ASD-BORG/03, Föreningen Greenpeace Norden v. Government of Norway, Judgment 24 January 2020, http://blogs2.law.columbia.edu/climate-change-litigation/ wp-content/up-loads/sites/16/non-us-case-documents/2020/20200224_HR-2020-846-J_appeal.pdf. 114 Cf i.a. High Court, Friends of the Irish Environment v. Government of Ireland et al., supra (fn. 107), para 135 et seq., assessing the Dutch court decision in Urgenda; Verwaltungsgericht Berlin, VG 10 K 412.18, Family Farmers and Greenpeace v. Germany, Judgment 31 October 2019. 115 Crosland, supra (fn. 32), 11, also pointing out, that acting in accordance with the PA is not necessarily in accordance with human rights obligations as well.

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In lawsuits challenging the legality of planning decisions such as big infrastructure projects the Paris Agreement gained ground as a decisive game changer, drawing attention to the impacts that the projects have on the global climate. The results are mixed, however. In Australia a court denied consent to an application filed for the authorisation of an 53 open cut coal mine, finding that it would run contrary to the public interest.116 When weighing the competing interests the court gave considerable weight to the projects climate change contribution, finding that it would be at the wrong place at the wrong time: “Wrong time because the greenhouse gas emissions of the coal mine and its coal product will increase global total concentrations of greenhouse gases at a time when what is now urgently needed, in order to meet generally agreed climate targets, is a rapid and deep decrease in greenhouse gas emissions.”117 In its assessment the court not only referred to the Paris Agreement’s long-term-temperature goal in Art. 2.1.(a); it found that the approval of the project “is also likely to run counter to the actions that are required to achieve peaking of global greenhouse gas emissions as soon as possible and to undertake rapid reductions thereafter in order to achieve net zero emissions […] in the second half of the century”, a goal included in Art. 4.1.118 Furthermore, the court accepted the carbon budget approach119 and made use of the developed country’s commitment to take the lead in taking mitigation measures, when sweeping aside the objection advanced by the applicant that it could happen that instead of this project a new coal mine could be approved in a developing country.120 The first case in which a court overturned a government’s approval of an infra- 54 structure project because it would run counter to the countries climate change mitigation commitments as contained inter alia in the Paris Agreement was in re Vienna Schwechat Airport Expansion. The decision was however subsequently reversed by the Constitutional Court.121 While the Austrian Federal Administrative Court had found that a third runway would be incompatible with the country’s obligations under its Climate Protection Act, Austria’s constitution, European Law and the Paris Agreement, the Constitutional Court rejected the notion that the Paris Agreement as international law could be applicable in the domestic legal context. This case shows the importance of a national clause allowing for the consideration of the Paris Agreement in the national legal system. Such a clause was found by the court in another planning-decision lawsuit in South- 55 Africa, even though the relevant statute did not expressly name climate change as being a relevant factor. In the case of the coal-fired Thabametsi Power Project122 South Africa’s High Court found that relevant considerations for environmental review under national law include the project’s impacts on the global climate as well as the impacts of a changing climate on the project. Even though the relevant statute does not expressly name climate change as being a relevant factor, the court relied inter alia on South Africa’s commitments under the Paris Agreement to conclude that climate change must

116 Land and Environment Court New South Wales, NSWLEC 7, Gloucester Resources Limited v. Minister for Planning, Judgment 8 February 2019. 117 Ibid., para 699. 118 Ibid., para 526. 119 Ibid., para 441. 120 Ibid., para 539. 121 Verfassungsgerichtshof Österreich, E 875/2017, E 886/2017, re Vienna-Schwechat Airport Expansion, Judgment 29 June 2019. 122 High Court of South Africa, 65662/16, EarthLife Africa Johannesburg v. Minister of Environmental Affairs et al., Judgment 06 March 2017.

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be considered.123 The result was that the Minister had to issue a new decision. However, after having assessed the climate change impacts of the project, he nonetheless granted the construction permit.124 56 In Plan B Earth and Others v Secretary of State for Transport125 the approval of a third runway for the Heathrow Airport was quashed because of the government’s ignorance of the Paris Agreement. The Court of Appeal considered the long-term effects of the planning decision, acknowledging that “[b]oth the development itself and its effects will last well into the second half of this century. The issue of climate change is a matter of profound national and international importance of great concern to the public – and, indeed, to the Government of the United Kingdom and many other national governments, as is demonstrated by their commitment to the Paris Agreement”.126 However the reason why the court concluded that the government had acted unlawful when approving the project was procedural. The approval was in breach of relevant sections of the Planning Act, the legal basis for the approval of the planning decision, because the Secretary of State had failed to consider the Paris Agreement, the non-CO2-warming impacts of aviation and the climate impacts of the operation of the airport beyond 2050. While the Court of Appeal found that the Paris Agreement was part of the government’s policy and thus had to be considered in making the planning decision, it was – similar to the Thabametsi case – not said that the government had to reach a specific decision. 57 In this area of litigation the line of argumentation and the potential for the Paris Agreement to play a role differ heavily depending on the national legal framework under which the case is brought. The national legal basis needs to entail a gateway for the Paris Agreement to come in. Such gateway might be found in an explicit requirement that climate change impacts must be considered, or it might arise from national climate change legislation or from indeterminate legal terms in domestic administrative law.127 Nonetheless as the examples mentioned above show, it also does depend on the willingness of the court as well as the national legal culture and institutional backgrounds, as some courts were able to draw on the Paris Agreement much easier than others, which denied its application.

5. Some general remarks: the importance of considering the national context 58

The question of the legitimate role for courts to play in the field of climate change litigation is a popular topic for academic discussion.128 Regardless of one’s view on that issue, the assessment of the court’s role in applying and interpreting the Paris Agreement has to be nuanced. Given that the application of the Paris Agreement differs heavily depending on the subject matter as well as on the national legal provision the case is based on, the role of the courts when applying the law cannot be easily compared.129 With the Paris Agreement’s bottom-up approach it is quite difficult to extract from the case law what the implication of the Agreement’s provisions is, since in defining the Agreement’s applicability and substantive meaning, courts rely heavily on 123 The Thabametsi case as well as the Vienna Airport case are subject to a comparative assessment in: Saiger, supra (fn. 86). 124 Ibid., 47, pointing out that the decision is currently being challenged in a new appeal procedure. 125 Court of Appeal, EWCA Civ 214, Plan B Earth and Others v. Secretary of State for Transport, Judgment 27 February 2020. 126 Ibid., para 276. 127 Saiger, supra (fn. 86), 52. 128 Cf – pars pro toto – Burgers, 9 TEL 2020, 55. 129 For this reason arguing for a comparative approach instead of a prevailing governance approach: Saiger, supra (fn. 86).

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national legal norms.130 The two functions of domestic courts when applying international law as law enforcers and law creators131 come into effect with differing weight, depending not only on the relief the court is asked to provide, but also on the legal basis the court is drawing on. This does not only depend on whether the case is rested in human rights law – where not only the state is granted wide discretion, but where also the courts do have a broad interpretative playground – or in administrative law with a usually much more detailed codification. The constitutional power of the courts also plays a role, along with the legal tradition, and – last but not least – the legal provision inviting the Paris Agreement to enter the courtroom. And in some cases, the result might be that there is a lack of this type of provision to introduce the Paris Agreement’s obligations and enable their enforcement. What the majority of the cases brought so far do have in common is that they are 59 situated at the mitigation level. Most human rights-based claims ask for stronger national reduction targets or compliance with the defined targets. Administrative proceedings are directed at stopping projects which would enable significant amounts of greenhouse gases to be emitted. However, cases directed at adaptation action or addressing loss and damage taking recourse to the Paris Agreement might gain importance over time, since the necessity of addressing both areas becomes ever more apparent with the temperature rising.

IV. Conclusion and outlook “This changes nothing”132 – the main criticism the Paris Agreement was confronted 60 with was its lack of legally binding substantial obligations. The Paris Agreement does indeed rely on a softer, cooperative approach between the state parties.133 But while commentators still did quarrel about the outcome, mourning the Agreement’s failure to deliver a strong and justiciable reduction regime – the Agreement was already brought to the courts, with some of them reaching a differing judgment. Resourceful lawyers all over the world found their ways to open the doors to the courtrooms for the Agreement. How the Paris Agreement feeds in this variety of cases, brought in different jurisdictions, in different areas of law, is manifold. The Agreement might be relied upon directly, or indirectly in form of implementing national legislation. It might be the provision of information emerged through the Agreement’s framework, or the enforcement of substantial provisions, principles or goals, that are relevant to the case. Even though these provisions might not be perceived as entailing legally binding obligations under international law, they still bear significant – and sometimes decisive – legal ramifications. In rights-based cases the definition of the reduction target might be decided by soft law provisions. In administrative planning decisions the impacts of the project might be assessed against the background of the long-term temperature goal. However, which role the Paris Agreement can play in a specific case is not as much determined by the respective provision being characterized as binding or not binding under international law, in as much as it depends on a variety of factors stemming from the domestic legal background under which the case was brought. What the Paris Agreement does provide for all of the claims is a setting. 130

Ibid., 49. Roberts, supra (fn. 86). 132 Spash, supra (fn. 7). 133 For a more managerial approach cf Doelle, in: Klein et al. (eds.), The Paris Agreement on Climate Change, 2017, 375; in the sense of a legal paradigm shift Franzius, 15 EurUP 2017, 166. 131

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The Paris Agreement did create a momentum, encouraging different layers of government, non-state actors and citizens to act now. As cases were brought to the courts – often supported by activist movements – cities did form coalitions, companies did make transformation plans and people did take their protest to the street. The spirit from Paris did enter the streets, the courtrooms, and the townhalls. Activists worldwide understood that the fight against climate change is a fight we can only win together, or we will lose together, a fight that has to be based on solidarity and climate justice. This understanding is not reflected sufficiently yet in the Paris Agreement, and not in the negotiations since. 62 As important questions were left open, and negotiations seem to stumble since, the spirit that came out of Paris needs to loop back to the international negotiating process. Leaving loss and damage to the WIM and relying on voluntary financial contributions with regard to adaptation as well as mitigation support does not suffice. These questions are better to be addressed through negotiations, but if the needed progress is too long in coming, litigation on the international level can be expected.134 61

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Cf Wewerinke-Singh, 9 Climate Policy 2019, 224.

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J. Liability of EU Member States under EU law* Bibliography: Agora Energiewende, Die Kosten von unterlassenem Klimaschutz für den Bundeshaushalt, https://www.agora-energiewende.de/veroeffentlichungen/die-kosten-von-unterlassenem-klimaschutz-fuerden-bundeshaushalt/ (visited 3 Nov. 2019); Kingston/Heyvaert/Čavoški, European Environmental Law, Cambridge University Press 2017; Bodansky/Brunnée/Rajamani, International Climate Change Law, Oxford University Press 2017; Bogojević, Climate Change Law and Policy in the European Union, in: Carlarne/Gray/Tarasofsky (eds.), The Oxford Handbook of International Climate Change Law, Oxford University Press, 2016, 670; Caranta, Governmental Liability after Francovich, 52 The Cambridge L. J., 272 (1993); Council of Europe, Manual on Human Rights and the Environment, 2nd ed., Council of Europe Publishing 2012; Craig/De Búrca, EU Law, 6th ed., Oxford University Press 2015; Curtin, State Liability under private law: A new remedy for private parties, 21 Industrial L. J., 74 (1992); European Commission, EU ETS Handbook, European Union 2015; Faure/Nollkaemper, International Liability as an Instrument to Prevent and Compensate for Climate Change, Stanford J. Intl. Law, 123 (2008); Grohs, Article 258/260 TFEU Infringement Procedures: The Commission Perspective in Environmental Cases, in: Cremona (ed.), Compliance and the Enforcement of EU Law, Oxford University Press 2012, 57; Hedemann-Robinson, Enforcement of European Union Environmental Law, 2nd ed., Routledge 2015; Hinteregger, Civil Liability and the Challenges of Climate Change: A Functional Analysis, J. Eur. Tort L. 238 (2017); Johnston/Van der Marel, How Binding are the EU’s ‘Binding’ Renewables Targets?, 22 Cambridge Yearbook Eur. L. S., 176 (2016); Kokott/Sobotta, The Kadi Case – Constitutional Core Values and International Law – Finding the Balance?, 23 Eur. J. Int’l. L. 1015 (2012); Peeters, Greenhouse gas emissions trading in the EU, in: Farber/Peeters (eds.), Climate Change Law, Vol. 1, Edward Elgar 2016, 377‐387; Purnhagen/van der Zeben/Schebesta/Biesbroek, Rumbling in Robes Round 2 – Civil Court Orders Dutch State to Accelerate Climate Change Mitigation, Eur. L. Blog, 9 January 2019, https://europeanlawblog.eu/2019/01/09/rumbling-in-robes-round-2-civil-court-orders-dutch-state-to-accelerate-climate-change-mitigation/; Ringel/ Knodt, The governance of the European Energy Union: Efficiency, effectiveness and acceptance of the Winter Package 2016, Energy policy, 209 (2018); Safjan, The Horizontal Effect of Fundamental Rights in Private Law – On Actors, Vectors, and Factors of Influence, in: Purnhagen/Rott (eds.), Varieties of European Economic Law and Regulation, Springer Science, 2014, 123; Saurer, Neue Entwicklungen bei der Vollzugskontrolle im europäischen Umweltrecht, EurUP 2016, 78; Saurer/Purnhagen, Klimawandel vor Gericht – Der Rechtsstreit der Nichtregierungsorganisation “Urgenda” gegen die Niederlande und seine Bedeutung für Deutschland, Zeitschrift für Umweltrecht (ZUR) 2016, 16; Schäfer/Ott, Lehrbuch der Ökonomischen Analyse des Zivilrechts, 4th ed., Springer Science 2005; Scott, The Multi-level Governance of Climate Change, in: Craig/De Búrca (eds.), The Evolution of EU Law, 2nd ed., Oxford University Press 2011, 805, Somsen, Francovich and its Application to EC Environmental Law, in: Somsen (ed.), Protecting the European Environment: Enforcing EC Environmental Law (Blackstone Publishing 1996), 135; Vedder, Leth: Court Rules Out Francovich Claim on the Basis of the Environmental Impact Assessment Directive, Eur. L. Blog, 27 March 2013, https://europeanlawblog.eu/2013/03/27/leth-court-rules-out-francovich-claim-on-the-basisof-the-environmental-impact-assessment-directive/> (accessed on 07/05/2019); Woerdman/Roggenkamp/ Holwerda, Essential EU Climate Law, Edward Elgar 2015.

Contents I. Introduction ..................................................................................................... 1 II. Greenhouse gas reduction obligations of EU Member States under EU law ............................................................................................................... 4 III. EU Member State liability within the non-ETS sector: the obligation to purchase surplus allocations from other Member States as financial sanction ............................................................................................ 12 IV. Financial sanctions within the infringement procedure as liability mechanism........................................................................................................ 20 V. Liability of EU Member States under Francovich doctrine? ................. 28

* The authors are grateful to Kaja-Vanessa Rothfuß, Claudio Seis (both University of Tübingen) and Eva van der Zee (Hamburg University) for useful comments. The usual disclaimer applies.

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Part 3. State liability under international and European law 1. The origins, function and reasoning and doctrinal embedding of non-contractual Member State liability as developed by the Court a) Origins of Member State liability under EU law ........................... b) Requirements for Member State liability under EU law.............. 2. The Francovich criteria for state liability and climate law cases ..... a) Requirements at EU level.................................................................... b) Requirements at Member State level ................................................ c) Application of these requirements to climate change cases........ aa) Infringing a rule of law intended to confer rights on individuals........................................................................................ (i) Secondary law: EU law of emission reduction ................. (ii) Primary law: individual rights.............................................. bb) Sufficiently serious breach ........................................................... cc) Direct causal link between the breach of the obligation resting on the state and the damage sustained by the injured parties ................................................................................. 3. Does the nature of the breach of Union law require a different yardstick in climate law cases? ................................................................ VI. Conclusion........................................................................................................

29 30 31 34 34 38 39 43 44 48 50 55 58 61

I. Introduction The European Union (EU) is a key actor in international efforts to mitigate anthropogenic greenhouse gas emissions to limit the rise in global temperatures and the perils of global warming. The EU has ratified the Paris Agreement on climate change of 2015 and has repeatedly renewed the commitment to “lead the global climate action”1 thereafter. In December 2019 the EU Commission announced the strategy for a “European Green Deal” that aims towards a carbon-neutral European economy and society by 2050.2 However, the overall success of the EU in the climate change sector depends on the implementation of ambitious greenhouse gas reduction measures in the EU Member States. 2 This piece investigates whether liability of Member States resulting from EU law can be used as a tool for the enforcement of EU climate change law vis-à-vis the Member States. Thereby, we deploy a broad notion of EU Member State liability that covers all types of financial sanctions that follow from non-compliance with legal obligations under EU climate change law. 3 Following the introduction section II. provides a sketch of greenhouse gas reduction obligations of EU Member States under EU law. It sets out the “primary obligations” of EU Member States that may be subject to the “secondary obligations” of liability mechanisms that will subsequently be identified and analysed. Section III. analyses EU Member State liability within the non-Emission Trading System (ETS)-sector as a liability mechanism that operates through purchase obligations for emission allowances between EU Member States. Section IV. assesses the infringement procedure according to Article 258‐260 TFEU with particular regard to the financial sanction mechanism. Section V. discusses the relevance of the judicial doctrine of non-contractual state liability in case of violations of EU law by Member States that was first established by the European Court of Justice in the Francovich case of 1990. We will end with a conclusion (section VI.). 1

1 See Communication from the Commission, Environmental Implementation Review 2019: A Europe that protects its citizens and enhances their quality of life, 4.4.2019, COM(2019) 149 final, 4; Communication from the Commission on the 2019 Climate Action Summit hosted by the United Nations Secretary General in New York, 11.9.2019, COM(2019) 412 final, 5. 2 Communication from the Commission, The European Green Deal, 11.12.2019, COM(2019) 640 final.

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II. Greenhouse gas reduction obligations of EU Member States under EU law Ever since the common approval of the Kyoto Protocol of 1997,3 the EU Member States have committed to the joint fulfilment of legal obligations under international climate change law.4 In the implementation process to the Kyoto-Protocol, EU climate change law evolved into two dimensions: the ETS and the non-ETS sector. The legal duties of EU Member States concern both dimensions of EU climate change law.5 In the ETS sector, the ETS directive 2003/87/EC6 established an EU wide cap & trade system that was gradually extended in scope.7 Today, the ETS-system covers about 45 % of EU greenhouse gas-emissions and comprises “more than 11,000 heavy energy-using installations (power stations & industrial plants) and airlines operating between these countries”.8 The EU Member States are required to implement the cap & trade system of the ETS-directive into the domestic legal order. The ETS-System is currently in phase 3 (2013‐2020), which differs from the preceding phases 1 and 2 in various features including a central, EU-wide cap on greenhouse gas-emissions. The default mechanism for emissions allocation shifted from grandfathering to auctioning.9 The non-ETS sector includes all other sources of greenhouse gas-emissions in the Member States and covers about 55 % of EU greenhouse gas-emissions. Law and policy of Member States in the non-ETS sector was coordinated in the Burden Sharing Decision 2002/358/EC (for the period 2008‐2012)10 and in the Effort-Sharing-Decision 406/2009/EC (for the period 2013‐2020).11 Both legal acts allocated duties of greenhouse gas-emission reduction among the Member States relative to the overall economic development of each state. The basic principle of joint fulfilment has been renewed under the Paris Agreement of December 2015 that strives to limit the increase in global temperature to 1.5‐2 degree above pre-industrial levels. The EU Council ratified the Paris Agreement (PA) in October 2016 and expressed EU Member States’ intent to act jointly under the PA.12 A particularly strong expression of joint fulfilment is visible in the system of nationally determined contributions (NDCs) that is at the architectural core of the PA. EU Member States have bundled their NDCs to the goals of the PA in the common EU 3 See Council Decision of 25 April 2002 concerning the approval, on behalf of the European Community, of the Kyoto Protocol to the United Nations Framework Convention on Climate Change and the joint fulfilment of commitments thereunder, OJ L 130, 15.5.2002, 1–20. 4 Woerdman/Roggenkamp/Holwerda, Essential EU Climate Law, 2015, 22 et seq.; Bodansky/Brunnée/ Rajamani, International Climate Change Law, 2017, 178. 5 Bogojević, in: Carlarne/Gray/Tarasofsky (eds.), Oxford Handbook of International Climate Change Law, 2016, 670 et seq. 6 Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, OJ 2003, L 275/32. 7 Scott, in: Craig/De Búrca (eds.), The Evolution of EU Law, 2nd ed. 2011, 805 (807 et seq.); Peeters, in: Farber/Peeters (eds.), Climate Change Law, Vol. 1, 2016, 377 et seq. 8 https://ec.europa.eu/clima/policies/ets_en (visited 2.11.2019). 9 https://ec.europa.eu/clima/policies/ets_en (visited 22.12.2019). 10 Council Decision 2002/358/EC of 25 April 2002 concerning the approval, on behalf of the European Community, of the Kyoto Protocol to the United Nations Framework Convention on Climate Change and the joint fulfilment of commitments thereunder, OJ 2002, L 130/1. 11 Decision No 406/2009/EC of the European Parliament and of the Council of 23 April 2009 on the effort of Member States to reduce their greenhouse gas emissions to meet the Community’s greenhouse gas emission reduction commitments up to 2020, OJ 2009, L 140/136. 12 Council Decision 2016/1841/EU of 5 October 2016, Article 1, recital (9)-(10), OJ 2016, L 282/1.

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target of reducing greenhouse gas emissions (GHG-emissions) by at least 40 % by 2030 compared to 1990, that was submitted as NDC of the EU to the Secretariat of the United Nations Framework Convention on Climate Change. 8 In the implementation process of the PA the EU has enacted a range of significant legal acts with far reaching consequences for EU Member States: Directive 2018/410/EU of the European Parliament and of the Council of 14 March 2018 revised ETS-directive 2003/87/EC and adjusted the ETS for the years after 2020 and towards the goals of the PA. The ETS system was re-enforced as “the cornerstone of the Union’s climate policy”.13 The annual reduction factor for the cap of the ETS-system was set to 2.2 % from 2021 onwards.14 The number of emission certificates that have been placed in the “market stability reserve” as a means to balance supply and demand was increased for a limited period through the end of 2023.15 9 The Effort Sharing Regulation 2018/842/EU of the European Parliament and of the Council succeeded the Effort Sharing Decision as a new legal fundament for climate change policies in the non-ETS sector for the period from 2021‐2030. Practically important emission sources in the non-ETS sector are housing, industry and the transportation sector. Annex I to Regulation 2018/842/EU allocates greenhouse gasemission-reduction-obligations among EU Member States relative to the overall economic development of each state.16 For example, Germany has to reduce greenhouse gas-emissions until 2030 compared to 2005 by 38 %, France by 37 %, Italy by 33 %, Spain by 26 % and Poland by 7 %. The EU Member States are generally free to choose the adequate policy instruments to reach these emission reduction goals. There are, however, several relevant EU legal acts that shape policies in the non-ETS sector including the new Renewable Energy Directive 2018/2001/EU,17 the renewed Energy Efficiency Directive18 and EU legislation for the transportation sector. The so called LUCLUF-Regulation 2018/841/EU has established a specific legal regime for greenhouse gas emissions and removals from land use, land use change and forestry.19 10 The Regulation 2018/1999/EU of the European Parliament and of the Council on Governance of the Energy Union and Climate Action (“Governance Regulation”)20 emphasizes the interdependence of GHG emission reduction and energy transition towards energy from renewable sources.21 The regulation establishes legal tools to coordinate climate change policies on the EU level and in the Member States. In particular, Member States are required to set up “integrated national energy and climate 13 Recital (6), Directive (EU) 2018/410 of the European Parliament and of the Council of 14 March 2018 amending Directive 2003/87/EC to enhance cost-effective emission reductions and low-carbon investments, and Decision (EU) 2015/1814, OJ 2018, L 76/3. 14 Recital (5), Directive (EU) 2018/410. 15 Recital (23), Directive (EU) 2018/410. 16 Regulation (EU) 2018/842 of the European Parliament and of the Council of 30 May 2018 on binding annual greenhouse gas emission reductions by Member States from 2021 to 2030 contributing to climate action to meet commitments under the Paris Agreement and amending Regulation (EU) No 525/ 2013, OJ 2018, L 156/26. 17 Directive (EU) 2018/2001 of the European Parliament and of the Council of 11 December 2018 on the promotion of the use of energy from renewable sources, OJ 2018, L 328/82. 18 Directive (EU) 2018/2002 of the European Parliament and of the Council of 11 December 2018 amending Directive 2012/27/EU on energy efficiency, OJ 2018, L 328/210. 19 Regulation (EU) 2018/841 of the European Parliament and of the Council of 30 May 2018 on the inclusion of greenhouse gas emissions and removals from land use, land use change and forestry in the 2030 climate and energy framework, and amending Regulation (EU) No 525/2013 and Decision No 529/ 2013/EU (Text with EEA relevance) PE/68/2017/REV/1, OJ 2018, L 156/1. 20 Regulation (EU) 2018/1999 of the European Parliament and of the Council of 11 December 2018 on the Governance of the Energy Union and Climate Action, OJ 2018, L 328/1. 21 Ringel/Knodt, Energy policy 2018, 209 et seq.

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plans” for time periods of 10 years and submit it to the EU Commission (Art. 3 Sec. 1 Regulation 2018/1999/EU). These plans have to include a broad range of information related to climate change and energy law and policy (Art. 3 Sec. 2 Regulation 2018/1999/ EU). The remarkably long ten year-period is intended to “ensure the transparency and predictability of national policies and measures in order to ensure investment certainty”.22 In 2018/2019 the EU’s climate change reduction targets have been challenged before 11 the EU General Court.23 Mr. Armando Carvalho and a plurality of further plaintiffs challenged the most recent EU climate change legislation by way of an action of annulment. Plaintiffs considered EU climate change legislation – especially the 40 % emission reduction target for 2030 compared to 1990 – as insufficient to effectively mitigate dangerous health and property effects of global warming. Thus, they argued, the EU violated a plurality of guarantees granted in the EU charter of fundamental rights. The action for annulment was declared inadmissible. The Court cited the traditional Plaumann doctrine of the ECJ and denied standing of the plaintiffs on the grounds of a lack of individual concern according to Art. 263 Sec. 4 TFEU.24 An appeal to the ECJ is pending.25

III. EU Member State liability within the non-ETS sector: the obligation to purchase surplus allocations from other Member States as financial sanction One mechanism of Member State liability in EU climate change law is established in the 12 non-ETS sector. Both the Effort Sharing-Decision 406/2009/EC and the Effort SharingRegulation 2018/842/EU do include a variety of “flexibility mechanisms” that EU Member States can apply in case they do not meet their domestic emission reduction targets. Regulation 2018/842/EU provides for a variety of tools of flexibility that EU Member 13 States may use to compensate for exceedance of the emission budgets including the possibility to bank or borrow a limited percentage of emission allocation for a following year (Article 5). For some of the EU Member States, there is an even broader array of flexibility instruments (Article 6 and 7). As a last emission resort, a safety reserve of up to 105 m. tonnes of CO2 is established, taking into account the challenges and economic interests of Member States with a GDP below the Union average (Article 11). The purchase of surplus emission allocations is intended as an ultima ratio in case no 14 other flexibility mechanism applies. Regulation 2018/842/EU recognizes the option of transfers of emission allocations between the Member States (Article 5). The regulation conceives of the emission allocation transfer as a monetarized process, e.g., recital (20) refers to the “selling” Member State and the “receiving” Member State. However, the regulation leaves the technical details for the transfer open.25a Recital (20) of Regulation 2018/842/EU states: “[The Member States] should also be able to transfer part of their annual emission allocation to other Member States. The transparency of such transfers should be ensured, and they ought to be carried out in a manner that is mutually 22

Recital (34) Regulation 2018/1999/EU. General Court, Case T‐330/18, Armando Carvalho and Others v European Parliament and Council of the European Union, ECLI:EU:T:2019:324. 24 General Court, Carvalho v European Parliament (fn. 23), mn. 45‐50. 25 ECJ, Case C-565/19 P: Appeal brought on 23 July 2019 by Armando Carvalho and others against the order of the General Court delivered on 8 May 2019 in General Court, Carvalho v European Parliament (fn. 23). 25a On the possibility of transfers of emission allocations to other Member States in the LULUCF sector see recital (21) and Art. 12 of Regulation 2018/841/EU. 23

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convenient, including by means of auctioning, by the use of market intermediaries acting on an agency basis, or by way of bilateral arrangements. Any such transfer could be the result of a greenhouse gas mitigation project or programme carried out in the selling Member State and financed by the receiving Member State.” Eventually, the purchase of surplus emission allocations from another EU Member State may be the only alternative for an EU Member State with exceeding emissions to avoid the penalty factor (1.08) to be calculated into future emissions and corrective actions under Regulation 2018/842/EU (Article 9). Because of the legal design of the liability mechanism (time-effects of flexibility mechanisms such as borrowing, banking, etc.) it is likely that the transfer option between the Member States will be particularly important towards the end of each reference period (2013‐2020; 2021‐2030). The price formation for emission allocation transfers between EU Member States is up for negotiation from case to case. Regulation 2018/842/EU does not provide any specifications or recommendations. The perhaps most important factor will be the number of transferable emission allocations (dependent upon the quantity of Member States staying below the annual emission allocation for a given year). A projection of the German think tank Agora Energiewende for the case of Germany illustrates the potentially far reaching scope and effects of the liability mechanism. In accordance with climate scientists and authorities,26 Agora Energiewende calculates upon the premise that Germany will miss both its GHG emissions targets for 2020 and for 2030.27 Agora projects that in 2020, many EU Member States will meet their GHG-emission goals.28 As a consequence, there will be plenty of emission allocations “on the market” in 2020 (that will be invalid after 2020) so that transfers of emission allocations to Germany seem conceivable from a plurality of countries at relatively low cost.29 However, according to Agora Energiewende, EU Member States will have much bigger problems reaching the 2030 climate targets. Accordingly, the number of emission allocations available on the market will drop significantly and in turn prices will rise. In case that Germany fails to reach its goals by a relatively wide margin (as Agora Energiewende projects), the consequence would be a very significant price tag on the emission allocations need for compensation. Agora Energiewende estimates the cost for required transfers of emission allocations from other EU Member States to Germany will range between 31 and 62 billion € (calculated for the entire second reference period 2021‐2030).30 The potential scope of Member State liability under the liability mechanism in the nonETS sector is already significant enough to give incentives to politics of the presence to enhance climate change policies in order to mitigate or even prevent the high liability payments that are projected as financial burdens for future budgets of EU Member States. In Germany, the looming prospect of liability payments under the EU-BurdenSharing-Decision 2009/406/EC and Effort-Sharing-Regulation 2018/842/EU was a key legislative motive for the first German Federal Climate Change Act that was enacted in 26 Report from the Commission, EU and the Paris Climate Agreement: Taking stock of progress at Katowice COP, 26.10.2018, COM(2018) 716 final, 9. 27 Agora Energiewende, Die Kosten von unterlassenem Klimaschutz für den Bundeshaushalt, 2018, S. 15, 17 et seq.; a most recent projection holds that the German 2020 goal of a 40% GHG emission reduction compared to 1990 is within reach (minus 35,7% until 2019), see https://www.umweltbundesamt.de/ pressemitteilungen/treibhausgasemissionen-gingen-2019-u.-63-prozent (visited 18 May 2020). 28 See also Report from the Commission to the European Parliament and the Council, EU and the Paris Climate Agreement: Taking stock of progress at Katowice COP, 26.10.2018 COM(2018) 716 final. 29 Agora Energiewende (fn. 27), 16. 30 Agora Energiewende (fn. 27), 8.

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December 2019.30a The legislative proposal for the Federal Climate Change Act that had been sponsored by the parliamentary fractions of the governing parties (CDU/CSU and SPD) cited the EU liability mechanism and the aim to avoid liability payments by German taxpayers very prominently in the first paragraphs of the reasoning on “goal and necessity” of the new national climate change legislation.31

IV. Financial sanctions within the infringement procedure as liability mechanism Another liability mechanism in EU law that could remedy breaches of EU climate change law by EU Member States are financial sanctions within the infringement procedure. The infringement procedure according to Art. 258‐260 TFEU is the classical instrument to enforce EU law in the Member States. The Treaty of Maastricht amended then Art. 171 Treaty establishing the European Community (TEC) (later Art. 228 TEC) with the possibility of pecuniary penalties that is today found in Art. 260 TFEU. The Treaty of Lisbon eased the requirements in order to accelerate the infringement procedure.32 The former requirement of a “reasoned opinion” (Art. 228 TEC) has been dropped. Art. 260 Sec. 2 TFEU only requires the Commission to send a formal notice (“giving that State the opportunity to submit its observations”). On all steps of the infringement procedure the Commission has discretion, whether to continue the procedure to the next step or drop the case.33 There is a duty to give reasons for a decision to not open the infringement procedure, though.34 Art. 260 TFEU distinguishes two kinds of financial penalties: lump sum or penalty payment. The calculation method for both kinds of financial penalties is laid out in a specific communication from the Commission.35 Important aspects guiding the calculation of the penalty include “the importance of the rules breached and the impact of the infringement on general and particular interests”, “the period the EU law has not been applied” and “the country’s ability to pay, ensuring that the fines have a deterrent effect”.36 In EU environmental law, the infringement procedure is a well-established tool of law enforcement.37 Long term statistics show that between 2002 and 2013 the majority of infringement procedures in the EU concerned the environmental sector.38 Moreover, in environmental infringement procedures the ECJ regularly applies financial penalties.

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Bundes-Klimaschutzgesetz of 12 December 2019, BGBl. I p. 2513. Gesetzentwurf der Fraktionen der CDU/CSU und SPD zur Einführung eines Bundes-Klimaschutzgesetzes und zur Änderung weiterer Vorschriften, BT-Drs. 19/14337, 1 and 17. 32 Craig/De Búrca, EU Law, 6th ed., 2015, 455. 33 ECJ Case 247/87 Star Fruit/Commission [1989] ECLI:EU:C:1989:58, mn. 11; ECJ Case 422/92, Commission of the European Communities v Federal Republic of Germany [1995], ECLI:EU:C:1995:125, mn. 18. 34 Grohs, in: Cremona (ed.), Compliance and the Enforcement of EU Law, 2012, 57 (60). 35 Communication from the Commission — Modification of the calculation method for lump sum payments and daily penalty payments proposed by the Commission in infringements proceedings before the Court of Justice of the European Union C/2019/1396, OJ 2019, C 70/1. 36 https://ec.europa.eu/info/law/law-making-process/applying-eu-law/infringement-procedure_en?cookies=disabled (visited 22 August 2019). 37 Saurer, EurUP 2016, 78 (82); Kingston/Heyvaert/Čavoški, European Environmental Law, 2017, 186 et seq. 38 Hedemann-Robinson, Enforcement of European Union Environmental Law, 2nd ed. 2015, 247 et seq. 31

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For example, in two cases concerning the implementation of the Waste Framework Directive the ECJ imposed in 2014 penalty payments on Greece and Italy after both countries did not comply with an earlier judgment of the Court.39 The penalty payment towards Greece amounted to a lump sum of 10 million € and 14.52 million € for an additional 6 months of non-compliance.40 The penalty payment towards Italy amounted to a lump sum of 40 million € and 42.8 million € for an additional 6 months of noncompliance.41 25 A most recent infringement procedure of the European Commission against Ireland concerns the non-compliance with a judgment of the ECJ of 2008,42 where Ireland had failed to conduct an environmental impact assessment for a wind farm. Emphasizing the long time span of 11 years of non-compliance, in November 2019 the Court ordered Ireland to pay a lump sum of 5 million € and a penalty payment for every day between the date of the most recent judgment and the date of compliance with the 2008 judgment.43 26 In 2019 the ECJ imposed a penalty payment on Belgium, making use of Art. 260 Sec. 3 TFEU (penalty payments during the first-round infringement procedure in noncommunication cases) for the very first time.44 From the point of view of the Commission, the more systematic application of pecuniary penalties during the first-roundprocedure under Art. 258 TFEU is an instrument to strengthen the infringement procedure as a tool of enforcement, especially in non-communication cases.45 27 The Commission has already declared its intent to enforce EU climate change law by way of the infringement procedure including fines. For the ETS sector, the Commission refers to the infringement procedure as the key tool to ensure that EU legislation is correctly implemented. In its “EU ETS Handbook” the Commission explains, that it may ultimately refer a case of non-compliance of a Member State to the ECJ that could find that an infringement has taken place and impose a pecuniary penalty.46 Similarly, the Commission has declared for the non-ETS sector that it may launch infringement procedures against non-compliant Member States as an additional tool that complements the compliance tools that are already included in the Burden-Sharing-Decision 2009/406/EC and the Effort-Sharing-Regulation 2018/842/EU.47 24

V. Liability of EU Member States under Francovich doctrine? 28

This section evaluates whether and if yes under which conditions Member States can be held liable for non-action to combat climate change under EU non-contractual state liability law. EU state liability law has been developed in the Court’s case law, known mostly as the “Francovich doctrine” called after the name of one of the applicants in the EU’s first landmark decision on state liability law.48 Whether this doctrine is applicable 39

ECJ Case C-378/13 European Commission v. Hellenic Republic [2014], ECLI:EU:C: 2014:2407. ECJ Commission v. Hellenic Republic (fn. 39), mn. 79‐80, at 65. 41 ECJ Case C‐196/13 European Commission v Italian Republic [2014], ECLI:EU:C:2014:2407, mn. 120, at 112. 42 ECJ Case C‐215/06, European Commission v Ireland [2014], ECLI:EU:C:2008:3807. 43 ECJ Case C‐261/18, European Commission v Ireland [2019], ECLI:EU:C:2019:955, mn. 136. 44 ECJ Case C-543/17, European Commission v. Belgium [2019], ECLI:EU:C:2019:573. 45 Communication by the Commission, EU Law: Better results through better application, 21.12.2016, COM(2016) 8600 final, 10. 46 European Commission, EU ETS Handbook, 2015, 11. 47 https://ec.europa.eu/clima/policies/effort/framework_en (visited 3 November 2019). 48 ECJ Cases C-6/90 and 9/90 Andrea Francovich and Danila Bonifaci and others v Italian Republic [1991] ECLI:EU:C:1991:428. 40

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to climate change litigation will be investigated in the following section. We will first develop the function of EU Member State liability law as developed by the Court to determine its applicability to climate change litigation. Subsequently, we will introduce the requirements of the Francovich doctrine as they have evolved in EU legal jurisprudence, before we apply them to climate change litigation situations.

1. The origins, function and reasoning and doctrinal embedding of noncontractual Member State liability as developed by the Court The case Francovich and Bonifiaci v. Italy49 (hereinafter Francovich) concerned a case 29 where the Republic of Italy had failed to implement a Directive into national law, which protected employees in the event of their employer’s insolvency. Unlike in previous cases where Member States had insufficiently implemented Directives which granted such individual rights, provisions in the Directive lacked sufficient precision to be directly applicable.50 A situation arose under which EU citizen in one Member State would not benefit from the rights a Directive would have granted to them only because of the more open wording of the Directive and a Member State failed to implement the Directive successfully. a) Origins of Member State liability under EU law. Against this background, in 30 Francovich the Court established the principle of non-contractual state liability to pay compensation for breach of EU law by EU Member States to applicants who were not able to realize their rights granted by the EU legal order. The origins of non-contractual liability for Member States’ breach of EU law draw from general requirements of Member States’ legal systems.51 Following this reasoning, the Court is also the right institution to determine the rules of such Member State liability at EU level, as also “in many national legal systems the essentials of the legal rules governing State liability have been developed by the courts.”52 These requirements have been recognised by the EU treaties, that is why the principle in itself stems from EU law and its origins and conditions are also primarily determined by “the principles inherent in the Community legal order which form the basis for State liability, namely, the full effectiveness of Community rules and the effective protection of the rights which they confer and the obligation to cooperate imposed on Member States by Article 5 of the Treaty.”53 A guiding line to determine these conditions are the conditions the Treaty established for the liability of Union institutions for breach of EU law.54 The reason for the latter is that “it shall be avoided that to have different rules governing the liability of the Community and the liability of Member States in like circumstances, since the protection of the rights which individuals derive from Community law cannot vary depending on whether a national authority or a Community authority is responsible for the damage.”55 As a general rule, liability of Union and Member State institutions for breach of EU law hence need to develop in parallel. The remedy itself and the criteria for the extent of reparation, however, are to be determined by the Member State.56

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ECJ Francovich v Italian Republic (fn. 48). See Curtin, Industrial L. J. 1992, 74. 51 ECJ Cases C-46 and 48/93 Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others [1996], ECLI:EU:C:1996:79, mn. 29. 52 ECJ, Brasserie v BRD (fn. 51), mn. 30. 53 ECJ, Brasserie v BRD (fn. 51), summary no. 4. 54 Caranta, Cambridge L. J. 1992, 272 (284). 55 ECJ, Brasserie v BRD (fn. 51), summary no. 4. 56 ECJ, Brasserie v BRD (fn. 51), summary no. 5. 50

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b) Requirements for Member State liability under EU law. In Francovich the Court h